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A   TREATISE 


LAW  OF  THE  DOMESTIC  RELATIONS. 


JLatu  €ej;M3oofeg 


By  JAMES  SCHOULER 


n  treatise  on  the  Havo  of  bailments. 

Including  Carriers,  Innkeepers,  aud  Pledge.  Third 
edition.    8vo. 

?l  Ctcatis'c  on  the  Ham  of  the  ©omestic  nidations. 
Eml)racing  Husband  and  Wife,  Parent  and  Child, 
Guardian    and   Ward,   Infancy,    and    Master    aud 
Servant.     Fifth  edition.     8vo. 

71  (treatise  on  the  Haw  of  *t?usbanb  anb  SPifc. 

8vo. 

?t  (Ctcatise  on  the  Ham  of  pctsonal  propcrtn. 

Third  edition,  with  additions.  2  vols.  8vo.  (Sold 
separately.)  Vol.  1  embraces  Nature  and  General 
Incidents,  Leading  (lasses;  Vol.  II.  embraces  Ac- 
quisition, (iift,  and  Sale. 


LITTLE,  BROWN,  AND  COMPANY 

Hauj  ^ooh  publishctB 

264  WASHINGTON   BTEEET,  nosTON 


A   TREATISE 


ON   THE 


LAW  OF  THE  DOMESTIC  RELATIONS ; 


EMBRACING 


HUSBAND   AND   WIFE,  PARENT   AND  CHILD,   GUARDIAN 

AND   WARD,   INFANCY,   AND   MASTER 

AND  SERVANT. 


JAMES   SCHOULER,  LL.D., 

PROFESSOR   IX   THE   BOSTON   UNIVERSITY   LAW   SCHOOL,    AND   AUTHOR 

OF    TREATISES    ON    THE    "LAW   OF    PERSONAL    PROPERTY," 

"BAILMENTS,  INCLUDING  CARRIERS,"  "WILLS,"  ETC. 


FIFTH    EDITION. 


BOSTON: 
LITTLE,  BKOWN,  AND  COMPANY. 

1895. 


Entered  according  to  Act  of  Congress,  in  the  year  1870, 

BY  JAMES   SCHOULER, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 
Entered  according  to  Act  of  Congress,  in  the  year  1874, 

BY  JAMES    SCHOULER, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 
Entered  according  to  Act  of  Congress,  in  the  year  1882, 

BY   JAMES    SCHOULER, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 
Entered  according  to  Act  of  Congress,  in  the  year  1889, 

BY   JAMES    SCHOULER, 

In  the  Office  of  the  Librarian  of  Congress  at  Washington,  D.  C. 
Entered  according  to  Act  of  Congress,  in  the  year  1895, 

BY   JAMES   SCHOULER, 

In  the  Office  of  the  Librarian  of  Congress  at  Washington,  D.  C. 

Copyright,  1898, 
Bv  James  Sciiouler. 

T 

5e  fi  W  ho 
\S95 


Univkhsity  I'hrsb  : 
John   Wii.vi.n  ami  Son,  CAMBRIDGE,  U.S.A. 


PREFACE   TO  THE   FIFTH   EDITION. 


The  present  edition  of  this  work  has  been  pre- 
pared by  the  author,  and  in  it  are  embodied  the  latest 
English  and  American  decisions,  brought  down  as 
nearly  as  possible  to  the  date  of  going  to  press. 
Miss  Mary  A.  Greene,  of  the  Boston  bar,  has  assisted 
in  collecting  the  cases. 

Our  law  of  Husband  and  Wife  is  still  changing, 
and  is  even  more  chaotic  than  when  this  book  was 
first  published,  twenty-five  years  ago.  Under  such 
circumstances  the  author  has  felt  himself  justified  in 
discriminating  somewhat  among  the  added  cases,  where 
so  many  are  of  purely  local  or  temporary  application ; 
others,  again,  being  cited  merely  by  book  and  page. 
Nothing,  however,  of  importance  in  the  general  treat- 
ment of  this  branch  of  the  law  has  been  overlooked, 
and  the  whole  work  is  still  kept  within  the  compass 
of  a  single  volume  for  the  reader's  convenience. 

J.  S. 

September  9,  1896. 


735876 


PREFACE   TO   THE   FIRST   EDITION. 


The  purpose  of  the  writer,  in  the  present  treatise,  is  to  fur- 
nish a  clear,  accurate,  and  comprehensive  analysis  of  the  law 
of  the  domestic  relations,  as  administered  in  England  and 
the  United  States  at  the  present  day. 

To  accomplish  this  purpose,  and  at  the  same  time  not  to 
transcend  the  limits  of  a  single  volume,  was  not  easy.  It  be- 
came necessary  to  treat  of  principles  rather  than  details,  and 
to  avoid  matters  of  local  practice  altogether.  A  few  topics, 
such  as  cnrtes}7  and  dower,  which  are  fully  discussed  in  other 
treatises,  have  been  for  the  same  reason  touched  upon  lightly, 
and  the  work,  on  the  whole,  made  elementary  in  its  method 
of  treatment,  though  at  the  same  time  practical.  The  lawyer 
who  misses  elaborate  head-notes  and  subdivisions  will  yet 
find  assistance  in  a  full  index  and  table  of  contents  ;  and 
what  has  been  lost  in  this  respect  is  gained  in  subject-matter. 
Especial  pains  have  been  taken  to  present  in  this  work  such 
topics,  pertaining  to  the  general  subject,  as  were  not  easily 
accessible  elsewhere. 

The  writer  has  freely  consulted  the  valuable  law  libraries  of 
the  Suffolk  Bar,  at  Boston,  and  of  Congress,  at  Washington, 
—  the  latter  being  the  most  extensive  in  this  country.  Among 
works  which  have  afforded  him  the  greatest  assistance  are 
Macqueen  on  Husband  and  Wife,  Peachey  on  Marriage  Set- 
tlements, Macpherson  on  Infancy,  and  Smith  on  Master  and 
Servant,  —  treatises  of  acknowledged  merit  in  England, 
though   little    known  in   the  United    States.     Other   books, 


VI  PREFACE   TO  THE  FIRST   EDITION. 

more  familiar,  which  need  not  he  enumerated  at  length,  fur- 
nished valuable  material  in  certain  parts  of  this  work,  as  the 
foot-notes  sufficiently  indicate.  The  writer  deems  it  just  to 
himself  to  add  that  the  time-honored  treatise  of  Judge  Reeve 
has  been  found  of  little  service,  the  radical  changes  of  the 
last  fifty  years  rendering  new  labor,  new  materials,  and  a  new 
plan  of  treatment  absolutely  essential  to  meet  the  growing 
wants  of  the  age. 

If,  on  the  whole,  the  present  work  is  found  to  answer  its 
purpose,  in  the  judgment  of  his  professional  brethren,  the 
writer  will  cheerfully  acknowledge  such  errors  and  blemishes 
as  the  judicious  critic  may  kindly  point  out. 

JAMES   SCHOULER. 

Washington,  D.  C,  April  30,  1870. 


TABLE  OF  CONTENTS. 


PART  I. 
INTRODUCTORY  CHAPTER. 

Paob 

§    1.     Domestic  Relations  defined;  Earlier  Writers 3 

§    2.     Plan  of  Classification,  &c 5 

§    3.     General  Characteristics  of  the  Law  of  Family 8 

§    4.     Law  of  Husband  and  Wife  now  in  a  Transition  State  ;  Various 

Property  Schemes  stated 9 

§    5.     Common-Law  Property  Scheme 10 

§    6.     Civil-Law  Property  Scheme       11 

§    7.     Community  Property  Scheme 13 

§    8.     The  Recent  Married  Women's  Acts 17 

§    9.     Marriage  and  Marital  Influence 17 

§  10.     General  Conclusions  as  to  the  Law  of  Husband  and  Wife  .     .  18 

§  11.     Remaining  Topics  of  the  Domestic  Relations;  Modern  Changes  20 


PART  II. 

HUSBAND  AND  WIFE. 

CHAPTER  I. 

MARRIAGE. 


§12.  Definition  of  Marriage 22 

§  13.  Marriage  more  than  a  Civil  Contract 22 

§  14.  Marriages  void  and  voidable 24 

§15.  Essentials  of  Marriage 26 

§16.  Disqualification  of  Blood ;  Consanguinity  and  Affinity    ...  27 


Vlll  TABLE    OF   CONTENTS. 

Page 
§  17.     Disqualification  of  Civil  Condition;  Race,  Color,  Social  Rank, 

Religion 30 

§  18.     Mental  Capacity  of  Parties  to  a  Marriage 31 

§  19.     Physical  Capacity  of  Parties  to  Marriage;  Impotence,  &c.  .     .     34 

§  20.     Disqualification  of  Infancy •     .     35 

§  21.     Disqualification   of  Prior  Marriage  undissolved ;  Polygamy  ; 

Bigamy 37 

§  22.     Same  Subject ;  Impediments  following  Divorce 39 

§  23.     Force,  Fraud,  and  Error,  in  Marriage 39 

§24.     Force,  Fraud,  and  Error;  Subject  continued 44 

§  25.     Essential  of  Marriage  Celebration        45 

§§  26,  27.     Same  Subject;  Informal  Celebration 46,  51 

§§  28,  29.     Same  Subject;  Formal  Celebration 53,  56 

§  30.     Consent  of  Parents  and  Guardians 58 

§31.     Legalizing  Defective  Marriages;  Legislative  Marriage    ...     59 

§  32.     Restraints  upon  Marriage 60 

§  32  a.     Marriage  in  another  State  or  Country 61 


CHAPTER  II. 

EFFECT    OF    MARRIAGE;    PERSON    OF    THE    SPOUSE. 

§33.     Effect  of  Marriage ;  Order  of  Legal  Investigation       ....  62 
§  34.     Person  of  the  Spouse ;  Coverture  Principle  ;  Husband  Head  of 

Family 62 

§  35.     Duty  of  Spouses  to  Adhere  or  Live  together 64 

§  36.     Breach  by  Desertion,  &c. ;  Duty  of  making  Cohabitation  tol- 
erable       65 

§  37.     The  Matrimonial  Domicile 67 

§38.     Same  Subject;  Husband's  Right  to  Establish  Domicile  .     .     .  68 

§  30.     Domicile  relative  to  Alien  and  Citizen 70 

§  40.     Change  of  Wife's  Name  by  Marriage 70 

§41.     Right  of  one  Spouse  to  the  other's  Society;  Suit  for  Entice- 
ment; Alienation  of  Affections,  &c 71 

§  42.     Husband's  Duty  to  render  Support 74 

.    !;.      Wife's  duty  to  render  Services 74 

11.     Right  of  Chastisement  and  Correction 75 

:  1.",.     Husband's  Right  of  Gentle  Restraint 76 

16.     Regulation  of  Household,  Visitors,  &c 77 

■:  17.     Custody  of  Children 79 

§  48.     Remedies  of  Spouses  against  each  other  for  Breach  of  Matri- 

monial  Obligations 79 

|  (9      The    Spouse  as   a   Criminal  ;    Private    Wrongs    and    Public 

Wrongs  compared 81 

§50.      Prr-uimpt ion  of  Wife's  Coercion,  how  far  carried 81 

|  51.     Offences  against  the  Property  of  One  Another 83 

Mutual  Disability  to  Contract,  Sue,  &c 83 

53.     Mutual  Disqualification  as  Witnesses 81 


TABLE   OF    CONTENTS.  IX 


CHAPTER   III. 

EFFECT  OF  COVERTURE  UPON  THE  WIFE'S  DEBTS  AND  CONTRACTS. 

Page 
§  54.     General  Inequalities  of  Coverture  at  Common  Law   ....     88 

§  55.     Exception  where  Wife  is  treated  as  Feme  Sole 90 

§§  56,  57.    Husband's  Liability  for  Wife's  Antenuptial  Debts         .   90,  92 

§  58.     Wife's  General  Disability  to  Contract 9;} 

§  59.     Wife's  Disability  to  Contract  extending  beyond  Coverture       .     95 

§  60.     Wife  binds  Husband  as  Agent 97 

§  61.  Wife's  Necessaries  ;  Foundation  of  Husband's  Obligation  .  97 
§  62.  Wife's  Necessaries  ;  Living  together  or  separate  .  .  .  .100 
§§  63-65.  Wife's  Necessaries  where  Spouses  live  together  101,  104,  107 
§§  66,  67.  Wife's  Necessaries  where  Spouses  live  apart  .  .  107,  112 
§  68.  Wife's  Necessaries  where  Spouses  live  apart  ;  Mutual  Separa- 
tion        113 

§  69.     Wife's  Necessaries  where  Spouses  live  apart  ;  Presumptions  ; 

Good  Faith 114 

§  70.     Wife's  Necessaries  ;  Summary  of  Doctrine 115 

§71.     Wife's  Necessaries ;  Miscellaneous  Points        117 

§  72.     Wife's  General  Agency  for  her  Husband 119 

§  73.     Effect  of  Marriage  of  Debtor  and  Creditor 122 


CHAPTER   IV. 

EFFECT   OF   COVERTURE    UPON   THE   WIFE'S   INJURIES   AND    FRAUDS. 

§  74.  General  Principle  stated 122 

§  75.  Torts  by  the  Wife;  Husband  and  Wife  sued  together,  or  Hus- 
band alone;  Presumption  of  Coercion,  &c 123 

§  76.  Torts  by  Wife  which  are  based  on  Contract 125 

§  77.  Torts  committed  upon  the  Wife 126 

§  78.  Torts  upon  the  Wife ;  Instantaneous  Death  ;  Statutes     .     .  130 

§  79.  Torts  upon  the  Wife  ;  Miscellaneous  Points 130 

CHAPTER  V. 

EFFECT   OF   COVERTURE    UPON   THE   WIFE'S   PERSONAL   PROPERTY. 

§  80.     Wife's  Personal  Property  in  General ;  Marriage  a  Gift  to  the 

Husband 131 

§  81.     Earnings  of  Wife  vest  in  Husband 133 

§  82.     Wife's  Personal  Property  in  Possession 134 

§  83.     Wife's  Personalty  in  Action 136 

§  84.     Wife's  Personalty  in  Action  ;  Reduction  into  Possession  .     .     138 


X  TABLE   OF   CONTENTS. 

Page 

§  85.     Wife's  Personalty  in  Action  ;   Wife's  Equity  to  a  Settlement     140 
§  86.     Personal  Property  held  by  Wife  as  Fiduciary;  Wife  as  Execu- 
trix, &c 141 


CHAPTER  VI. 

EFFECT  OF  COVERTURE  UPON  THE  WIFE'S  CHATTELS  REAL  AND 
REAL  ESTATE. 

§§  87,  88.     Husband's    Interest   in   Wife's   Chattels   Real,   Leases, 

&c 142,  145 

§  89.     Wife's  Real  Estate  ;  Husband's  Interest 147 

§  90.     Wife's  Real  Estate  ;  Husband's  Right  to  Convey  or  Lease     .  151 

§91.  Wife's  Real  Estate  ;  Husband's  Mortgage;  Waste  .  .  .  154 
§  92.     Wife's  Real  Estate  ;  Husband's  Dissent  to  Purchase,    &c.  ; 

Conversion 155 

§  93.  Wife's  Real  Estate  ;  Husband's  Agreement  to  Convey  .  .  156 
§  94.     Wife's  Agreement  to  Convey;  Her  Conveyance,  Mortgage,  &c, 

under  Statutes 157 

§  95.     Covenants  in  Wife's  Statute  Conveyance  or  Mortgage,  &c.  161 

§  96.     Conveyance,  &c,  of  Infant  Wife's  Lands 163 

§  97.     Distinction  between  Wife's  General  and  Separate  Real  Estate  163 

§  98.     Wife's  Life  Estate  ;  Joint  Tenancy,  &c 164 

§  99.     Husband's  Freehold  Interest  in  Wife's  Land  not  Devisable  by 

Wife 165 


CHAPTER   VII. 

COVERTURE   MODIFIED   BY   EQUITY   AND   RECENT    STATUTES. 

§  100.  Prevalent  Tendency  to  equalize  the  Sexes  ;  Marriage  Rela- 
tion affected 165 

§  101.     Modern  Changes  in  Married  Women's  Rights;  How  to  be 

Studied 167 

§  102.     Modern    Equity  and   Statute    Doctrine  ;    England   and   the 

United  States 167 

CHAPTER  VIII. 

Till,  wife's  separate  property  ;  exglish  doctrine. 

§  lo:{.     Origin  and  Nature  of  Separate  Estate  in  Chancery    .     .     .  168 

§  I'll.     Whether  Appointment  of  a  Trustee  is  Necessary   ....  169 
g  ID").     Coverture  applies   Prima    Facte;   How  Separate  Estate  is 

created 170 

§  106.     Separate  Use  binds  Produce  of  Fund 173 


TABLE    OF    CONTENTS.  XI 

Paob 

§  107.     Separate  Use  exists  only  during  Marriage  ;  Exceptions ;  Am- 
bulatory Operation 174 

§  108.     Wife's  Right  to  renounce  Separate  Use,  &c 175 

§  109.     Separate  Use  and  the  Marital  Obligations 176 

§  110.     Clause  of  Restraint  upon  Anticipation 177 

§111.     Separate  Use  in  Common-Law  Courts;    English  Married 

Women's  Acts 178 


CHAPTER  IX. 

THE   WIFE'S   SEPARATE   PROPERTY;    AMERICAN   DOCTRINE. 

§  112.     Early  American  Rule 179 

§  113.     The  Late  Married  Women's  Acts;  Social  Revolution      .     .  181 
§  114.     Scope  of  Married  Women's  Acts;  Constitutional  Points  .     .  185 
§  115.     Married  Women's  Acts  as  to  Antenuptial  Property  and  Ac- 
quisitions from  Third  Persons 189 

§  116.     Change  of  Investment;  Increase  and  Profits;  Purchase,  &c.  190 

§  117.     Methods  of  Transfer  from  Third  Parties  under  these  Acts  .  191 

§  118.     Acquisitions  from  Husband  not  so  much  Favored       .     .     .  192 
§  119.     Husband's  Control;   Mixing  Wife's  Property  or  Keeping  it 

Distinct 194 

§  120.     Husband  as  Wife's  Trustee  in  this  Connection      ....  196 

§  120  a.     Presumptions  as  to  Separate  Property  under  these  Acts    .  197 

§  121.     Schedule  or  Inventory  of  Wife's  Property 199 

§  122.     Statutory  and  Equitable  Separate  Property 199 

§  123.     American  Equity  Doctrine;  Trustee  for  Separate  Property  200 

§  124.     Equity  Doctrine;  How  Separate  Use  created 201 

§  125.     Equity  Doctrine ;  Acquisition  by  Contract;  Produce  and  In- 
come    203 

§  126.     Equity  Doctrine;  Preserving  Identity  of  Fund      ....  203 
§  127.     Equity  Doctrine;  Separate  Use  only  in  Married  State;  How 

Ambulatory 204 

§128.     Equity  Doctrine;  Whether  Marital  Obligations  affected     .  205 

§  129.     Equity  Doctrine;  Restraint  upon  Anticipation      ....  205 


CHAPTER  X. 

THE    WIFE'S    DOMINION    OVER    HER    EQUITABLE    SEPARATE    PROPERTY. 

§  130.     General  Principle  of  Wife's  Dominion 206 

§  131.     Wife,  unless  restrained,  has  Full  Power  to  dispose     .     .     .  206 

§  132.     Same  Principle  applies  to  Income 207 

§  133.     Technical  Difficulties  as  to  disposing  of  Real  Estate  .     .     .  208 
§  134.     Liability  of  Separate  Estate  on  Wife's  Engagements;  Eng- 
lish Doctrine 208 

§  135.     The  Same  Subject;  Latest  English  Doctrine 212 


xii  TABLE   OF   CONTENTS. 

Pagb 

§  136.  Dominion  and  Liability  of  Wife's  Separate  Estate;  Ameri- 
can Doctrine 213 

§  136  a.     Property  with  Power  of  Appointment 215 

§  137.     Wife's  Right  to  bestow  upon  Husband,  bind  for  his  Debts, 

&c 216 

§  138.     Concurrence  of  Wife's  Trustee,  whether  Essential      .     .     .     218 

§  139.     Whether    AVife    must    be    specially   restrained  under  the 

Trust " 218 

§  140.     Wife's  Participation  in  Breach  of  Trust  with  Husband  or 

Trustee 219 

§  141.     Income  to  Husband;  One  Year's  Arrears 220 


CHAPTER  XL 

THE   WIFE'S    DOMINION   OVER    HER   STATUTORY   SEPARATE   PROPERTY. 

§  142.  Dominion  under  Married  Women's  Acts  in  General  .  .  .  221 
§  143.  New  York  Rule  as  to  Wife's  Charge  not  Beneficial  .  .  .  221 
§  144.  Combined  Tests;  Benefit  and  Express  Intention  ....  224 
§  144  a.     Wife's  Separate    Property  bound  for  Family  Necessaries, 

&c 225 

§  145.  Whether  Wife  may  bind  as  Surety  or  Guarantor  ....  226 
§  146.     Inquiry   into    Consideration    Pertinent ;    Promissory   Note, 

Bond,  &c 227 

§  147.     Equity  charges  Engagement  on  General  as  well  as  Specific 

Property 229 

§  118.  Married  Woman's  Executory  Promise;  Purchase  on  Credit  229 
§  149.     Married  Woman's    Ownership  of    Stock;    Employment  of 

Counsel ."    ...     231 

§  150.  Joinder  of  Husband;  Wife's  Conveyances  and  Contracts  .  232 
§150a.     Statutory  Restraints  upon  Alienation  of  Wife's  Separate 

Property 234 

§  151.     Improvements,  Repairs,  &c,  on  Wife's  Lands;  Mechanics' 

Liens 234 

§152.     Mortgage  of  Wife's  Lands 236 

§153.  Wife's  Separate  Property;  Husband  as  Managing  Agent  .  237 
154.     Husband  as  Managing   Agent;    Services,  &c. ;    Husband's 

Creditors 238 

§  155.     Husband's  Dealings  with  Wife's  Property;  Gift,  Fraud,  Use 

of  Income,  &c 240 

Married  Woman  as  Trustee 244 

•;  157.     Tendency  as  to  Wife's  Binding  Capacity;  her  Estoppel  or 

Election 244 

§  158.     Proceedings  for  charging  Wife's  Separate  Estate;   Suing  and 

being  Sued  as  a.  Single  Woman 246 

158a.      Promise  of  a  Third   Person  to  pay  a  Married  Woman's 

Debt 218 

1 159.     English  Married  Women's  Acts ;   Wife's  Disposition      .    .    248 


TABLE   OF   CONTENTS.  Xlil 

CHAPTER  XII. 

THE    WIFE'S   PIN-MONEY,    SEPARATE    EARNINGS,    AND    POWER   TO   TRADE. 

Page 

§160.     The  Wife's  Pin-Money 248 

§  161.     Wife's  Housekeeping  Allowance 250 

§  162.     Wife's  Earnings  belong  to  the  Husband;  Legislative  Changes, 

&c 250 

§  163.     Wife's  Power  to  Trade  or  Exercise  a  Profession ;  Earlier 

English  Rules 253 

§  164.     Wife's  Power  to  Trade,  &c. ;  American  Equity  Rule  .     .     .     255 
§165.     Conclusion  from  English  and  American  Decisions  .     .     .     .     256 
§  166.     Enlargement  of  Wife's  Power  to  Trade  or  Exercise  a  Pro- 
fession under  Recent  Statutes 257 

§  167.     Wife's  Trading  Liabilities  under  American  Statutes  .     .     .     259 

§  168.     Wife's  Trade  ;  Husband's  Participation 260 

§  169.     Wife  as  Copartner  with  Husband  or  Others 264 

§  170.     Civil-Law  Doctrine  of  Separate  Trade 266 

§  170,  note.     Modern  Statute  Changes  in  Marital  Rights  reviewed    .     266 

CHAPTER  XIII. 

ANTENUPTIAL    SETTLEMENTS. 

§  171.     Nature  of  Marriage  Settlements 267 

§  172.     Distinguished   from   Promises   to   Marry   under   Statute   of 

Frauds 268 

§  173.     Marriage     the   Consideration   which    supports    Antenuptial 

Settlements        268 

§  174.     How  far  this  Support  extends 270 

§  175.     Settlement  Good  in  Pursuance  of  Written  Agreement      .     .     271 

§  176.     Form  of  Antenuptial  Settlements 272 

§  177.     Marriage  Articles 073 

§  178.     Marriage  Settlements  by  Third  Persons 274 

§179.     Effect  of  Statute  of  Frauds;  Lost  Settlements,  &c.      .     .     .     275 

§  180.     General  Requirements;  Trustees,  &c 275 

§181.     Secret  Settlement  before  Marriage;  Fraud  of  a  Spouse    .     .     276 

§182.     Reforming  Marriage  Settlements;  Portions,  &c 278 

§  183.     Equity  corrects  Mistakes,  or  sets  aside ;  Fraud  and  Improvi- 
dence        279 

§  183  a.     Rescission  or  Avoidance  of  a  Marriage  Settlement  .     .     .     281 

CHAPTER   XIV. 

POSTNUPTIAL    SETTLEMENTS;    GIFTS    AND    GENERAL    TRANSACTIONS 
BETWEEN    SPOUSES. 

§  184.     Postnuptial    Settlements    distinguished   from   Antenuptial  ; 

Gifts  between  Spouses -J  82 


XIV  TABLE   OF   CONTENTS. 

Page 

§  185.     Postnuptial   Settlements   as  to   Creditors   and   Purchasers  ; 

Statutes  13  Eliz.  and  27  Eliz 283 

§  186.     Same  Subject  ;  Statute  13  Eliz.  ;  Bankrupt  Acts  ....  283 

§  187.     Same  Subject  ;   Stat.  27  Eliz 286 

§  1S8.     Same  Subject;  Settlement  upon  Valuable  Consideration     .  289 

§  188  a.       Same  Subject ;  Settlement  by  Wife  upon  Husband,  &c.  .  291 

§§  1S9,  190.     Postnuptial  Settlements  as  between  the  Spouses      291,  294 

§  191.  General  Transactions  between  Husband  and  Wife  .  .  .  296 
§  192.     Transfer  of  Note  from  one  Spouse  to  the  Other;  Deposit ; 

Conveyance 297 

§  193.     Conveyances  or  Transfers  to  Husband  and  Wife  ;  Effect     .  298 

§  194.     Questions  of  Resulting  Trust  between  Husband  and  Wife  299 

§  194  a.       Mutual  Right  to  sue  under  Modern  Statutes      ....  300 

§  195.     Insurance  upon  Husband's  Life 301 

CHAPTER  XV. 

DEATH   OF    THE   WIFE  ;    RIGHTS   AND   LIABILITIES    OF    THE   SURVIVING 

HUSBAND. 

§  196.     Husband's  Right  to  Administer 301 

§  197.     The  Same  Subject ;  Assets  for  Wife's  Debts 303 

§  19S.     Surviving  Husband's  Rights  in  Wife's  Personal  Property    .  304 

§  199.     Husband's  Obligation  to  bury  Wife  ;   Rights  corresponding  306 

§  200.     Death  of  Husband  pending  Settlement  of  Wife's  Estate       .  308 

§  201.     Rights  in  Wife's  Real  Estate ;  Tenancy  by  the  Curtesy       .  308 

§  202.     Tenancy  by  the  Curtesy  ;  Subject  continued 309 

§  203.     Husband's    Claims   against    Wife's    Real   Estate;   Improve- 
ments, &c 311 

§  203,  note.     Wills  of  Married  Women 311 

CHAPTER   XVI. 

DEATH    OF   THE    HUSBAND ;    RIGHTS    AND    LIABILITIES    OF    THE 
SURVIVING   WIFE. 

§201.     Widow's  Right  to  Administer 312 

§  205.     Widow's  Distributive  Share  in  Personalty 313 

§  206.     Widow's  Waiver  of  Provision  of  Will 314 

\  207.     Widow's  Allowance 314 

§  208.     Widow's  Paraphernalia 315 

§  209.  Equity  <>f  Redemption  and  Exoneration  in  Mortgages     .     .  318 

£  210.  Controversies  between  Administrator  and  Widow       .     .     .  319 

§  211.  Widow's  Obligation  to  bury  Husband:  her  Rights,  &c.  .     .  319 

§212.  Effect  of  Husband's  Death  upon  Wife's  Agency    ....  320 

§218.     The  Widow's  Dower 321 

§214.     Homestead  Rights 323 

§  214a,     Simultaneous  Death  of  Husband  and  Wife;  Ownership  of 

Fund 324 


TABLE   OF   CONTENTS.  XV 

CHAPTER  XVII. 

SEPARATION    AND    DIVORCE. 

Page 

§  215.     Deed  of  Separation  ;  General  Doctrine 324 

§  21G.     The  Same  Subject;  English  Rule 325 

§  217.     The  Same  Subject;  American  Rule 327 

§  218.     The  Same  Subject;  what  Covenants  are  upheld     ....     329 

§219.     Abandonment;  Eights  of  Deserted  Wife 333 

§  220.     Divorce  Legislation  in  General 334 

§  220  a.     Legislation  upon  Divorce;  Divorce  from  Bed  and  Board; 

Divorce  from  Bond  of  Matrimony,  &c 336 

§220  6.     Causes  of  Divorce;  Adultery;   Cruelty;  Desertion;  Miscel- 
laneous Causes 337 

§221.  Effect  of  Absolute  Divorce  upon  Property  Rights  ....  340 
§  222.  Effect  of  Partial  Divorce  upon  Property  Rights  ....  343 
§  222,  note.     Conflict  of  Laws  relating  to  Marriage,  Divorce,  &c.       .     344 


PART   III. 

PARENT   AND   CHILD. 

CHAPTER   I. 

OF    LEGITIMATE    CHILDREN    IN    GENERAL. 

§  223.     Parent  and  Child   in  General ;    Children,   Legitimate    and 

Illegitimate 345 

§  224.     Legitimate  Children  in  General 316 

§  225.     Presumption  of  Legitimacy 346 

§  226.     Legitimation  of  Illicit  Offspring  by  Subsequent  Marriage    .  351 
§  227.     Legitimation  by  Subsequent  Marriage  not  favored  in  Eng- 
land       354 

§  227  a.     Legitimacy  of  Offspring  born  after  Divorce 355 

§  228.     Legitimacy  in  Marriages  Null  but  Bona  Fide  contracted       .  355 

§  229.     Legitimation  by  the  State  or  Sovereign 356 

§  230.     Domicile  of  Children 356 

§231.     Conflict  of  Laws  as  to  Domicile  and  Legitimacy     ....  358 

§  232.     Parental  Relation  by  Adoption 360 

CHAPTER   II. 

THE   DUTIES   OP   PARENTS. 

§  233.     Leading  Duties  of  Parents  enumerated     - 362 

§  231.     Duty  of  Protection ;  Defence,  Personal  and  Legal       .     .     .     362 


XVI  TABLE  OF   CONTENTS. 

Pag* 

§  235.     Duty  of  Education 363 

§  236.     Duty  of  Maintenance  iu  General 366 

§  237.     Maintenance  at  Common  Law ;  Statute  Provisions     .     .     .  367 
§  238.     Maintenance,    &c,   in   Chancery;    Allowance    from    Child's 

Fortune 371 

§  239.     Chancery  Maintenance  as  to  Mother  ;   Separated  Parents,  &c.  375 

§  240.     Chancery  Maintenance  ;  Income  ;  Fund 377 

§  241.     Whether  Child  may  bind  Parent  as  Agent;  Child's  Neces- 
saries        378 

§  211  a.     Child's  Necessaries  ;  Miscellaneous  Points 382 

§  242.     Duty  of  providing  a  Trade  or  Profession        382 

§  212  a.     Liability  for  Minor  Child's  Funeral  Expenses      ....  382 

§  212  b.     Value  of  Parental  Education,  Support,  &c 382 


CHAPTER   III. 

THE   RIGHTS   OF   PARENTS. 

§  243.     Foundation  of  Parental  Rights 383 

§  244.     Parental  Right;  Chastisement;  Indictment  for  Cruelty,  &c.  383 

§245.     Parental  Custody  ;  Common-law  Rule  ;  English  Doctrine    .  385 

§  246.     Chancery  Jurisdiction  in  Custody  ;  Common  Law  overruled  386 

§247.     Custody;  English  Rule  ;  Statute 388 

§  248.     Parental  Custody  ;  American  Rule 389 

§  249.     Custody  under  Divorce  and  other  Statutes 392 

§  250.     Custody  of  Minors ;  Child's  own  Wishes 394 

§  251.     Contracts  transferring  Parental  Rights 394 

§§  252,  252  a.     Right  of  Parent  to  Child's  Labor  and  Services       396,  398 

§  253.     Clothing,  Money,  &c,  given  to  the  Child  ;  Right  to  Insure  401 

§  254.     Mother's  Rights  to  Child's  Services  and  Earnings  ....  402 

§  255.     Parent  has  no  Right  to  Child's  General  Property   ....  403 

§  256.     Constitutional  Right  of  Legislature  to  interfere  with  Parent  404 


CHAPTER   IV. 

THE    PARENT'S    RIGHTS   AND    LIABILITIES    FOR   THE   CHILD'S   INJURIES 

AND    FRAUDS. 

§  257.     Injuries,  &c,  committed  upon  or  by  the  Child 405 

§§  258,  259.     Injuries  committed  upon  the  Child;  Parent's  Right  to 

sue 405,  407 

§260.     Suit   for  harboring  or  enticing  away  One's  Child;  Abduc- 
tion, &o.      . 409 

§§261,  261  o.     Suit  for  Seduction  of  a  Child 411,416 

■      Damages  in  Parental  Suits  for  Injury  to  the  Child      .    .    .    417 
;      Parental  Liability  where  the  Child  is  the  Injuring  Party     .    418 


TABLE   OF   CONTENTS.  xvil 


chapter  v. 

DUTIES    AND    RIGHTS    OF    CHILDREN,    WITH    REFERENCE    TO    THEIR 

PARENTS. 

Paob 

§  264.     General  Duties  of  Children  to  Parents 421 

§  2(35.     Whether  Child  may  be  legally  bound  to  support  Parent; 

Statutes 422 

§  206.     Rights  of  Children  in  General 424 

§  267.     The  Emancipation  of  a  Child 424 

§  267  a.     How  a  Minor  Child  is  emancipated;  Parental  Relinquish- 
ment of  Right  to  Earnings 426 

§  268.     Effect  of  Minor  Child's  Emancipation  or  Relinquishment    .  429 

§269.     Rights  of  Full-grown  Children 431 

§  270.     Gifts,  &c,  and  Transactions  between  Parent  and  Child  .     .  433 

§  271.     Same  Subject;  English  Cases 436 

§272.     Advancements   and   Distributive    Shares;   Expectancies  of 

Heirs 437 

§  273.     Stepchildren ;  Quasi  Parental  Relationship 440 

§  274.     Claims  against  the  Parental  Estate  for  Services  rendered    .  442 

§  275.     Suits  between  Child  and  Parent      .     .               .....  443 


CHAPTER  VI. 

ILLEGITIMATE    CHILDREN. 

§  276.     Illegitimate  Children ;  Their  Peculiar  Footing 444 

§  277.     Disability  of  Inheritance 444 

§§  278,  278  a.     Mother  preferred  to  the  Putative  Father ;  Custody 

448,  450 

§  279.     Maintenance  of  Illegitimate  Children 451 

§280.     Persons  in  Loco  Parentis;  Distant  Relatives,  &c 453 

§281.     Bequests.  &c,  to  Illegitimate  Children 454 

§  282.     Guardianship  of  an  Illegitimate  Child 456 


PART   IV. 

GUARDIAN   AND   WARD. 

CHAPTER   I. 

OF  GUARDIANS  IN  GENERAL;  THE  SEVERAL  KINDS. 

§283.     Guardianship  defined;  Applied  to  Person  and  Estate      .     .     457 
§284.     Classification  of  Guardians  in  England;  Obsolete  Species    .     458 

b 


XV111  TABLE   OF   CONTENTS- 

Pagk 

§285.  English  Doctrine;  Guardianship  by  Nature  and  Nurture     .  459 

§286.  English  Doctrine;  Guardianship  in  Socage 460 

§  287.  English  Doctrine;  Testamentary  Guardianship      ....  461 

§  288.  English  Doctrine;  Chancery  Guardianship 463 

§  289.  English  Doctrine;  Guardianship  by  Election  of  Infant    .     .  465 

§  290.  Classification  of  Guardians  of  Minors  in  the  United  States; 

Nature  and  Nurture,  Socage,  and  Testamentary      .     .     .  466 

§  291.  American  Doctrine;  Chancery  and  Probate  Guardianship    .  468 

§  292.  Guardianship  by  the  Civil  Law 471 

§  293.  Guardians  of  Idiots,  Lunatics,  Spendthrifts,  &c 471 

§  294.  Guardians  of  Married  Women 473 

§  295.  Special  Guardians ;  Miscellaneous  Trusts 473 

§  296.  Guardian  ad  litem  and  Nest  Eriend 473 


CHAPTER   II. 

APPOINTMENT    OF    GUARDIANS. 

§  297.     Appointment  of  Guardians  over  Infants  in  General     .     .     .  474 

§  298.     Guardians  under  Authority  of  the  Law 474 

§§  299,  300.     Testamentary  Guardianship,  how  constituted     .      475,  477 

§301.     Guardianship  by  Appointment  of  Infant;  Right  to  nominate  478 

§  302.     Chancery  and  Probate  Guardians  are  judicially  appointed   .  479 

§303.     The  Same  Subject ;    Jurisdiction;   how  obtained     ....  479 

§§  304,  305.     Selection  of  Chancery  or  Probate  Guardian    .     .      484,  486 
§306.     Same  Subject ;  Appointment  of  Married  Women;    of  Non- 

Resident,  &c 489 

§  307.     Method  of  Appointing  Guardian  ;  Procedure 491 

§308.     Effect  of  Appointment;   Conclusiveness  of  Decree,  &c.    .     .  492 

§  309.     Civil-Law  Rule  of  Appointing  Guardians 494 


CHAPTER   III. 

TERMINATION    OF    THE    GUARDIAN'S    AUTHORITY. 

§310.     How  the  Guardian's  Authority  is  terminated 495 

§311.     Natural  Limitation;  Ward  of  Age,  &c 495 

§312.     Death  of  the  Ward 497 

18.     Marriage  of  the  Ward 497 

§  314.     Death  of  the  Guardian 499 

§  315.     Resignation  of  the  Guardian 499 

116,   :'>17,  317  a.     Removal   and   Supersedure  of  the  Guardian 

501,  505,  506 

§  31H.     Marriage  of  Female  Guardian 507 

L9,    Other  Cases  where  a  New  Guardian  is  appointed  ....  508 


TABLE   01    CONTENTS.  xix 

CHAPTER   IV. 

NATURE    OF    THE    GUARDIAN'S    OFFICE. 

Page 

§  320.     Guardianship  relates  to  Person  and  Estate 509 

§321.     Whether  a  Guardian  is  a  Trustee 511 

§  322.     Joint  Guardians 512 

§  323.     Judicial  Control  of  the  Ward's  Property 514 

§  324.     Guardianship  and  other  Trusts  blended 515 

§  325.     Administration  durante  Minore  -Elate 517 

§  326.     Quasi  Guardianship  where  no  Regular  Appointment.     .     .  517 

§  327.     Conflict  of  Laws  as  to  Guardianship 518 

§  328.     Conflict  as  to  Ward's  Person 518 

§  329.     Conflict  as  to  Ward's  Property 519 

§  330.     Constitutional  Questions  relating  to  Guardianship      .     .     .  522 

CHAPTER  V. 

RIGHTS    AND   DUTIES    OF    GUARDIANS    CONCERNING    THE    WARD'S 

PERSON. 

§  331.     Division  of  this  Chapter 523 

§§  332,  333.     Guardian's  Right  of  Custody 524,  526 

§  334.     Guardian's  Right  to  change  Ward's  Domicile  or  Residence  .  528 
§  335.     Right  to  Personal  Services  of  Ward;  to  recover  Damages; 

Other  Rights 530 

§  336.     Guardian's  Duties  as  to  Ward's  Person;  in  General    .     .     .  531 

§  337.     Liability  for  Support  of  Ward 532 

§  338.     Same  Subject;  Using  Income  or  Capital,  &c 535 

§  339.     Allowance  to  Parent  for  Ward's  Support ;  Chancery  Rules  .  537 

§  340.     Secular  and  Religious  Education  of  Ward  by  Guardian  .     .  539 

CHAPTER   VI. 

RIGHTS    AND    DUTIES    OF    THE    GUARDIAN   AS    TO   THE   WARD'S   ESTATE. 

§  341.     In  General;  Leading  Principles 540 

§  342.     Guardian's  General  Powers  and  Duties  as  to  Ward's  Estate  541 

§  343.     Right  to  sue  and  arbitrate  as  to  Ward's  Estate      ....  542 

§  344.     Whether  Guardian  can  bind  Ward's  Estate  by  his  Contracts  545 

§  345.     Title  to  Promissory  Notes,  &c. ;  Promise  not  Collateral  .     .  547 

§346.     Guardian's  Employment  of  Agents 548 

§  347.     Changes   in   Character  of   Ward's    Property;    Sales,   Ex- 
changes, &c 548 

§§  348,349.     Limit  of  Guardian's  Responsibility  in  Management   550,553 


XX  TABLE   OF   CONTENTS. 

Page 
§§  350,  351.  Management  of  Ward's  Real  Estate  in  Detail  .  .  554,  557 
§  352.  Management  of  the  Ward's  Personal  Property  in  Detail  .  .  558 
§  352  a.     Whether  the  Guardian  can  Bind  by  Pledge,  &c.       .     .     .     562 

§  353.     Investment  of  Ward's  Funds 562 

§354.     Same  Subject;  when  Chargeable  with  Interest 565 

§  351a.     Guardian  like  other  Fiduciaries 567 


CHAPTER  VII. 

SALES   OF    THE   WARD'S   REAL   ESTATE. 

§  355.     In  Sales  of  Ward's  Personal  Property  a  Liberal  Rule  ap- 
plies    568 

§  356.     Otherwise  as  to  Real  Estate;  Whether  Chancery  can  sell 

Infant's  Lands 569 

§  357.     Same  Subject;  English  Chancery  Doctrine 570 

§  358.     Civil-Law  Rule  as  to  Sales  of  Ward's  Lands 571 

§  359.     Sale  of  Ward's  Lands  under  Legislative  Authority  common 

in  the  United  States 571 

§  360.     American  Statutes  on  this  Subject  considered 572 

§361.     Same  Subject;  Essentials  of  Purchaser's  Title 574 

§  361  a.     Other  Statute  Provisions;  Mortgage,  &c 579 

§  362.     American  Statutes;  Sales  in  Cases  of  Non-Residents       .     .  579 
§  363.     American  Chancery  Rules  as  to  Sales  of  Infant's  Land   .     .  580 
§  364.     Guardian's  own  Sale  not  binding;  Public  Sale  usually  re- 
quired       582 


CHAPTER   VIII. 

THE    GUARDIAN'S    BOND,    INVENTORY,    AND    ACCOUNTS. 

§  365      Guardian's  Recognizance;  Receiver,  &c.  ;  English  Chancery 

Rule 582 

§360.     American  Rule;  Bonds  of  Probate  and  other  Guardians  .     .  583 
§§  367,  368.     The  Same  Subject;  Liability  of  Guardian  and  Sure- 
ties       586,591 

§369.     The  Same  Subject;  Special  Bond  in  Sales  of  Real  Estate     .  591 

§370.    The  Guardian's  Inventory 592 

i       The  Guardian's  Accounts;  English  Chancery  Practice    .     .  593 
§§372,373.     The  Guardian's  Accounts;    American  Practice;   Peri- 
odical and  Final  Accounts,  &c 594,  598 

§  371.     The  Same  Subject;  Items  allowed  the  Guardian  on  Account  600 

§875.     Compensation  of  Guardians •  603 

§  :'.7»'..     Suit,  on  the  Guardian's  Bond  for  Default  and  Misconduct    .  605 
§  :;77.     The   Same   Subject;    Remedies   against   and  on  behalf  of 

Sureties 606 


TABLE   OF   CONTENTS.  XXI 
CHAPTER  IX. 

RIGHTS    AND    LIABILITIES  OF  THE  WARD. 

Page 

§378.     General  Rights  of  the  Ward 609 

§  379.     Doctrine  of  Election  as  to  Wards,  Insane  or  Infant     .     .     .  609 

§  381).      Same  Subject;  Insane  Persons  and  Infants  Contrasted    .     .  610 

§  381.     Responsibility  of  Guardian  to  Ward  as  Wrongdoer,  &c.        .  611 
§§  382,  382  a.     Ward's  Action  or  Bill   for    Account;    Limitations, 

&c 612,614 

§  383.     Ward's  Right  to  Recover  Embezzled  Property,  &c.      ...  615 

§  384.     Fraudulent  Transactions  set  aside  on  Ward's  behalf       .     .  615 
§  385.     Ward's  General  Right  to  repudiate  Guardian's  Transactions; 

His  Right  of  Election 617 

§386.     Same    Subject;    Resulting   Trusts;    Guardian's    Misuse   of 

Funds;  Purchase  of  Ward's  Property,  &c 619 

§387.     Transactions  between  Guardian  and  Ward;  Undue  Influence  623 
§  388.     Same  Subject;  Situation  of  Parties  at  Final  Settlement  of 

Accounts 623 

§  389.     Transactions  after  Guardianship  is  ended 628 

§  390.     Marriage  of  Ward  against  Consent  of  Chancery  or  Guardian  631 


PART    V. 
INFANCY. 

CHAPTER  I. 

THE   GENERAL    DISABILITIES    OF    INFANTS. 

§391.     Age  of  Majority 633 

§  392.     Growing  Capacity  during  Non-age;  Legislative  Relief  from 

Non-age 634 

§  393.     Conflict  of  Laws  as  to  True  Date  of  Majority 635 

§  394.     Infant's    Right  of  holding   Office  and  performing  Official 

Functions 636 

§  395.     Infant's  Responsibility  for  Crime 638 

§396.     Infant's  Criminal  Complaint :  Discretion  against  Peril,  &c.  610 

§  397.     Whether  Infant  may  make  a  Will 640 

§  398.     Testimony  of  Infants 642 

§399.     Marriage  Settlements  of  Infants 615 

§  399  a.     Infants  Exercise  of  a  Power 647 


XXU  TABLE   OF   CONTENTS. 

CHAPTER  II. 

ACTS    VOID  AND   VOIDABLE. 

Page 

§  400.     General  Principle   of  Binding   Acts   and  Contracts,  as  to 

Infants 648 

§  401.  The  Test  as  to  Void  and  Voidable  ;  Infant's  Transactions  .  649 
§  402.     Privilege  of  avoiding  is  Personal  to  Infant;  Rule  as  to  Third 

Persons,  &c 651 

§  403.     Modern  Tendency  regards  Infant's  Acts  and  Contracts  as 

Voidable  rather  than  Void;  Instances  Discussed    .     .     .  653 

§  404.     Same  Subject;  Bonds,  Notes,  &c 654 

§405.     Same  Subject;  Deeds,  &c. ;  Rule  of  Zouch  v.  Parsons      .     .  656 

§408.  Same  Subject ;  Letters  of  Attorney ;  Cognovits,  &c.  .  .  .  658 
§  407.     Same  Subject;  Miscellaneous  Acts  and  Contracts  Voidable 

and  not  Void 660 

§  408.     Infant's  Trading  and  Partnership  Contracts 663 

§  409.     Void   and  Voidable  Acts  contracted ;    When  may  Voidable 

Acts  be  affirmed  or  disaffirmed 666 

CHAPTER  III. 

ACTS    BINDING    UPON   THE   INFANT. 

§  410.     General  Principle  of  Binding  Acts  and  Contracts  ....  667 

§411.  Contracts  for  Necessaries ;  What  are  such  for  Infants  .  .  668 
§§412,413.  Contracts  for  Necessaries;  Subject  continued  .  670,673 
§  414.     Contracts  for  Necessaries;  Money  advanced;  Infant's  Deed, 

Note,  &c. ;  Equity  Rules 677 

§  414  a.     Liability  for  Necessaries  ;  Miscellaneous 681 

§  415.     Binding  Contract  as  to  Marriage  Relation ;  Promise  to  marry 

contrasted • 681 

§  410.     Acts  which  do  not  touch  Infant's  Interests;  Where  Trustee, 

Officer,  &c 682 

§  117.     Infant  Members  of  Corporations 682 

11-.     Acts  which  the  Law  would  have  compelled 683 

I  ill).     Contracts  binding  because  of  Statute;  Enlistment;  Indenture  683 

120.     Infant's  Recognizance  for  Appearance  on  Criminal  Charge  684 

§421.     Whether  Infant's  Contract  for  Service  binds  him  .     ...  684 

CHAPTER  IV. 

THE    INJURIES    AMi    FRAUDS   OF   INFANTS. 

§422.     Division  of  this  Chapter 685 

§423.     Injuries  committed  by  Infant:  Infant  Civilly  Responsible   .     685 


TABLE   OF   CONTENTS.  XXlil 

Page 
§  424.  Immunity  for  Violation  of  Contract  distinguished  .  .  .  0b7 
§§  425,  426.     Same  Subject ;  Infant's  Fraudulent  Representations  as 

to  Age,  &c 690,  693 

§  427.     Injuries,  &c,  suffered  by  Infants 694 

§  428.     Same  Subject ;  Child's  Contributory  Negligence    ....     695 
§  429.     Same    Subject ;    Contributory   Negligence   of   Parent,    Pro- 
tector, &c 696 

§  430.     Suits  of  Parent  and  Child  for  Injury;  Loss  of  Services  reck- 
oned     699 

§  431.     Arbitration,  Compromise,  and  Settlement  of  Injuries  com- 
mitted or  suffered  by  Infants 700 


CHAPTER  V. 

RATIFICATION    AND    AVOIDANCE    OF    INFANT'S    ACTS    AND    CONTRACTS. 

§  432.     Infants  may  ratify  or  disaffirm  Voidable  Acts  and  Contracts   701 
§  433.     Rule  affected    by    Statute ;    Lord    Teuterden's    Act ;    Other 

Statutes 701 

§434.     Rule  Independent  of  Statute;  American  Doctrine       .     .     .     703 

§  435.     The  Same  Subject;  Instances 705 

§436.     The  Same  Subject;  Conflicting  Dicta 708 

§  437.     The  Same  Subject ;  Summary  of  Doctrine 709 

§  438.     Rule  as   to   Conveyance   of  Infant's   Lauds,   Lease,   Mort- 
gage, &c 711 

§  439.     Same  Subject;  Infant's  Conveyance,  Lapse  of  Time,  &c.     .     713 

§  44U.     The  Same  Subject  ;  Entry,  &c 716 

§  441.     Ratification,  &c  ,  as  to  an  Infant's  Purchase 718 

§  442.     Executory  Contracts,  &c,    Voidable  during  Infancy  ;   how 

affirmed  or  disaffirmed 719 

§  443.     Rule  applied  to  Infant's  Contract  of  Service 720 

§  444.     Parents,  Guardians,  &c,  cannot  render  Transaction  Obliga- 
tory upon  the  Infant,  &c 722 

§  445.     Miscellaneous  Points  ;  As  to  New  Promise  ;  Whether  Infant 

affirming  must  know  his  Legal  Rights 723 

§  446.     Whether  Infant  who  disaffirms  must  restore  Consideration  .     724 

§416a.     Avoidance  through  Agents,  &c 727 

§  447.     Ratification,  &c,  as  to  Infant  Married  Spouse 727 

§  448.     Rules  ;  How  far  Chancery  may  elect  for  the  Infant    .     .     .     729 

CHAPTER  VI. 

ACTIONS    BY    AND    AGAINST    INFANTS. 

§  449.     Actions  at  Law  by  Infants;  Suit  or  Defence  by  Next  Friend 

or  Guardian 730 

§450.     Ad  ion  at  Law  by  Infants  :  the  Next  Friend 732 

§  451.     Action  at  Law  against  Infant  ;  the  Guardian  ad  litem     .     .     735 


XXIV  TABLE   OF    CONTENTS. 

Page 
§  452.     Chancery  Proceedings  by  or  against  Infants  ;  Corresponding 

Rule 738 

§  453.     Binding  Effect  of  Decree  or  Judgment  upon  the  Infant  .     .     740 


PART  VI. 
MASTER   AND   SERVANT. 
CHAPTER   I. 


nature  of  the  relation;  how  created  and  how  terminated. 

§  454.  Definition ;  this  not  strictly  a  Domestic  Relation  ....  742 
§  455.  Rule  of  Classification  as  to  Master  and  Servant  ....  744 
§456.     Relation  of  Master  and  Workman;  Courts  of  Conciliation; 

Trade  Unions,  &c 745 

§  457.     Relation  of  Master  and  Apprentice 748 

§  45S.     Strict  Relation  of  Master  and  Servant  ;  Contract  of  Hiring      750 
§  459.     Contract  of  Hiring  affected  by  Statute  of  Frauds  ....     753 
§  460.     Contract  of  Hiring  ;  when  in  Restraint  of  Trade  or  Oppres- 
sive as  to  Length  of  Term 754 

§  461.     Creating  the  Relation  of  Service ;  Quasi  Servants       .     .     .     755 

§  401  a.     Hiring  by  Husband  or  Wife 758 

§§  462,  463.     How  Contract  for  Service  is  terminated ;  Withdrawal 

or  Resignation  ;  Causes  of  Discharge,  &c.    .     .     758,  761 
§  464.     Termination  of  Service   by  Mutual    Consent,   &c. ;    Special 

Terms 762 

§105.     Servant's   Occupation  of  Master's  Premises;    No    Tenancy 

Presumed 763 

CHAPTER  II. 

MUTUAL    OBLIGATIONS    OF    MASTER    AND    SERVANT. 

Obligations  to  be  considered  ;  as  to  Master;  as  to  Servant       704 

7.     Master's  Obligation  as  to  Education,  Discipline,  &c.       .     .     764 

Ma  fcer's  Obligation  as  to  furnishing  Necessaries  ....     705 

•      Master's  Obligation  as  to  finding  Work 765 

170.     Master's  Obligation  to  indemnify  Servant 766 

\  171.     Master's   Obligation  to  receive  into  Service  the  Person  en- 
gaged :  Remedies  Eor  lb-each 766 

'      Obligation  to  pay  Wages  ;  Servant's  Right  to  recover    .     .    767 
..'  17;.     Tin-  Same  Subject  ;  Rules  for  Payment  of  Wages;  Offsets; 

Preference;   Apportionment,  &c 700 

§  47".  "  Effecl  of  Death  upon  the  Relation  ;  Apportionment,  &c.  .  771 
§  474.     Tin-  Same  Bnhjecl  ;  Change  of  Contract  ;  Excuse  by  Act  of 

God  ;  Justifiable  Termination,  &c 773 


TABLE   OF    CONTENTS.  XXV 

Page 
§  475.     The  Same  Subject;  Termination  by  Mutual  Consent;  Spe- 
cial Conditions,  &c 775 

§  476.     Master's  Representations  as  to  Servant's  Character ;  Guar- 
anty as  to  Character,  &c 776 

§  477.     Obligations  resting  specially  upon  the  Servant;  Performance 

of  his  Engagement 777 

§  478.     Servant's  Accountability  to  his  Master  ;  xsegligence,  Unskil- 

fulness,  &c 778 

§  479.     Master  and  Servant  may  defend  one  another 779 

§  4S0.     Servant  a  Competent  Witness  for  his  Master 779 


CHAPTER  III. 

RIGHTS    AND    LIABILITIES    OF    THE    SERVANT    AS    TO    THIRD    PERSONS. 

§  481.  Servant  not  personally  Liable  on  Contracts  ;  Exceptions     .  779 

§  482.  Rule  of  Servant's  Liability  for  his  Torts  and  Frauds  .     .     .  7S0 

§  483.  Torts  and  Frauds  of  Public  Officers 782 

§  484.  Criminal  Accountability  of  Servant 783 


CHAPTER   IV. 

GENERAL    RIGHTS    AND    LIABILITIES    OF    THE    MASTER. 

§  485.     Leading  Division  of  this  Chapter 783 

§  486.     Master's  Right  of  Action  for  Injuries  to  Servant     ....  7S3 

§  487      Right  of  Action  for  Seduction,  Enticement,  &c,  of  Servant  783 
§  4S8.     Whether  Servant's  Outside  Acquisitions  belong  to  Master, 

&c. 785 

§489.     Liability  of   Master   upon    Servant's   Contracts;    Servant's 

Agency 786 

§  490.     Master's  Civil  Liability  to  Others  for  Servant's  Torts     .     .  789 

§491.     The  Same  Subject;   Limitations  of  Rule 792 

§492.     Master's  Responsibility  for  Tort  to  his  own  Servants  ;  Ex- 
ception as  to  Fellow-Servants.  &c 793 

§  493.     Master  not  Criminally  Responsible  for  Servant,  but  only  for 

himself 797 

§  494.     Final  Observations  on  Law  of  Domestic  Servants  ....  798 


Preface  to  the  Fifth  Edition iii 

Preface  to  First  Edition v 

Table  of  Contents .     .     .     .  vii 

Table  of  Cases xxvii 

Index 799 


TABLE  OF  CASES. 


A. 

Aaron  v.  Harley 
Abbey  v.  Leyo 
Abbott  v.  Abbott 

v.  Bayley 

v.  Converse 

v.  Jackson 
Abrahams  v.  Kidney 
Abshire  v.  State 
Achilles  v.  Achilles 
Ackerman,  Re 

v.  Bunyon 
Ackert  v.  Pultz 
Ackley  v.  Dygert 
Acosta  v.  Kobins 
Acton  v.  Pierce 
Adams  v.  Adams 

v.  Cutright 

v.  Gleaves 

v.  Irving  National  Bank 

v.  Palmer 

v.  Rivierre 

v.  Ross 

v.  State 
Adams'  Appeal 
Adamson  v.  Armitage 
Addison  t».  Bowie 
Adlard  v.  Adlard 
Agar-Ellis,  In  re 

v.  Lascelles 
Agricultural  Ins   Co.  v.  Barnard 
Ahem  v.  Easterby 
Ahrenfeldt  v.  Ahrenfeldt 
Alabama,  &c,  Ins.  Co.  v   Boj'kin 
Albany  Fire  Ins.  Co.  v.  Bay 
Albert  v.  Perry 

v.  Winn 
Albert's  Appeal 
Albin  v.  Lord 
Albrecht,  Re 
Alcock  v.  Alcock 
Aldrich  v.  Bennett 

v.  Grimes 
Aldridge  v.  Muirhead 
Alexander,  Re 


411 

168,  313 

52,  221 

218 

267,  2G7  a 

107 

201 

197,  399 

181 

273 

436 

94 

361 

271 

175 

48,  226,  269 

30 

324,  377 

58 

12 

382 

404 

53 

301,  308 

105,  It  Hi 

238 

190 

340 

235 

380 

67 

249 

94 

94 

305 

173 

348 

155 

119 

53 

267  a 

437 

5,  155 

186 


15 


v.  Alexander     9,  85, 114,  321,  374 


SECTION 

Alexander  v.  Hard 

89 

v.  Heriot 

435 

Alfred  v.  McKay 

278 

Allen  v.  Allen 

210,  225,  405 

v.  Caster 

238,  239 

v.  Croshmd 

367 

v.  Fuller 

148 

v.  Gaillard 

353 

v.  Hanks 

114 

v.  Hightower 

154 

v.  Hoppin 

343 

v.  Jackson 

32 

v.  Keilly 

461a 

v.  Little 

464 

v.  McCullough 

86 

v.  Minor 

404 

v.  Peete 

305 

v.  Poole                405,435,  438,  439 

v.  Scurry 

89 

v.  State 

367 

v.  Tiffany 

376 

v.  Walt 

187 

Allfrey  v.  Allfrey 

389 

Allgood  v.  Williams 

334 

Allison  v.  Watson 

267 

Allman  v.  Owen 

372 

Allsop  v.  Allsop 

77 

Almond  v.  Bonnell 

114,398 

Alston  v.  Alston 

325,  366 

v.  Mumford 

322,  326 

Alsworth  v.  Cordtz 

402,  439 

Altemus's  Case 

221 

Alverson  v.  Jones 

120  a 

Ambrose  v.  Kenison 

199,  412 

American,  &c,  Ins.  Co.  v 

.  Owen        94 

American  Mortgage  Co. 

v.  Wright 

438 

Ames  v.  Ames 

353,  450 

v.  Chew 

222 

v.  Foster 

148,  170 

Ammons  v.  People 

367,  376 

Anderson  v.  Anderson 

77,  83, 107 

v.  Armistead 

151 

v.  Brooks 

124 

v.  Darby 

350 

v.  Lay  ton 

361,  385 

XXV111 


TABLE   OF    CASES. 


SECTION 

Anderson  v.  Mather  363,  447 

v.  Roberts  188,  355 

v.  Smith  56 

v.  Soward  445 

v.  Watson  345 

v.  Watt  37 

v.  Yates  333 

Andover  v.  Merrimack  County         269 

Andrews,  In  re  299,  333 
v.  Andrews                  188,  380,  399 

v.  Askey  262 

v.  Garnett  241 

v.  Monilaws  158 

v.  Parkinton  238 

v.  Salt  340 

Andrews'  Heirs  329 

Andrews'  Heirs  Case  369 

Andros  v.  Andros  231 

Angel  v.  Felton  57,  75 

v.  McLellan  241,  413 

Ankenv  v.  Blackistone  343 
v.  Hannon                      136,  143,  145 

Annaiulale,  Marchioness  of,  v.  Har- 
ris 279 

Annin  v.  Annin  187 

Anthony  v.  Phillips  69 

Appleton  v.  Rowley 

Apthorp  v.  Bacchus 

Archer  v.  Frowde 
v.  Guill 
v.  Hudson 
v.  Rorke 

Arcliley  v.  Sprigg 

Armfield  v.  Armfield 


v.  Tate 
Armitage  v.  Kinstra 
v.  .Mace 
v.  Snowden 

!'.     WlllllC 

Armstrong  v.  Armstrong 
v.  McDonald 
v.  Norton 

v.  Ross 

v.  Stone 

V.  Walk  up 

Ariictt  r.  ( llenn 
Arnold  v.  Earle 
Arrington  v.  Dortch 
Artlmr  v.  Arthur 
Arthur's  Appeal 
Anmdcll  v,  Pllipps 

A>-liir\  i    Johnston 
Ashcrafl  v.  Little 
Aiher  v.  stale 
At   Held  »   Aahfleld 
Ashhurst's  .'\  ppeal 
A  ihley  v.  Marl  in 
Ajblin  '■.  Langton 


107,  420 
449 
450 

118,  155 
271 
105 
225 

173,  174, 

348,  349 
446 
386 
189 
386 

406,  444 

80 

252  n 

259,  267  a 

133,  134,  136, 

11.:,  1  19,  158 

248 

813,326,  372, 

374,  375 
155 
897 
206 

10."),  1  11 

291,  301 
188 
867 
124 
874 
438 
862 


354, 


400 


Ashton  v.  Aylett 
Ash  worth  v.  Outram 
Askew  v.  Dupree 
Askey  v.  Williams 
Aspinwall  v.  Aspinwall 
Atcherly  v.  Vernon 
Atchison  v.  Bruff 
Atkins  v.  Atkyns 

v.  Curwood 

v.  Sherbino 
Atkinson,  Ex  parte 

v.  Atkinson 

v.  Medford 

v.  Phillips 

v.  Whitehead 
Atkyns  v.  Pearce 
Atlee  v.  Hook 
Attebury  v.  Attebury 
Attridge  v.  Billings 
Atwood  v.  Halcomb 
Aucker  v.  Levy 
Auster  v.  Powell 
Austin  v.  Cox 

v.  Wilson 
Averson  v.  Lord  Kinnain 
Avery  v.  Avery 

v.  Griffin 

v.  Vansickle 
Aycliff  v.  Archdale 
Ayer  v.  Warren 
Ayers  r.  Burns 

v.  Jenkins 
Ay  1  ward  v.  Kearney 
Aymar  v.  Roff 

B. 

B.  v.  B. 

Babb  v.  Perley 
Babbitt  v.  Babbitt 
Babcock  v.  Doe 

v.  Eckler 

v.  Smith 
Bacon  v.  Taylor 
Baddeley  v.  Baddeley 
Baden hoff  v.  Johnson 
Badger  v.  1'hinney 
Badgley  v.  Decker 
Baer  v.  Rooks 
Bagby  v.  Emberson 
Baggett  f.  Meux 
Bagley  v.  Fletcher 

v.  Mollard 
Bahin  v.  Hughes 
Bahn  v.  Bahn 
Bailey,  I  •  parte 

r.  Bailey 

v.  Bamberger 

v.  Calcott 

v.  Duncan 

v.  Fiske 


SECTION 

134 

163, 166 

26,  29,  30 

412,  414 

217 

105 

413 

66 

64 

252  a 

330 

354 

18 

187 

348,  352 

66 

462 

162 

61 

252  a,  267  a 

176 

272 

325 

76 

53 

220  b 

58 

143 

414 

58,  219,  486 

414 

174 

388 

21 


20 
89 


403 

380 

175 

343,  350 

190 

305 

424,  446 

261 

408 

94 

110 

405,  449 

281 

76 

220ft 

245 

45 

446 

66 

89 

17 


■TABLE   OF   CASES. 


XXIX 


Bailey  v.  King 
v.  Lanahan 

v.  Pearson 

v.  Rodders 
Bain  v.  Buff 

v.  Lesclier 
Bainbridge  v.  Brown 

v.  Pickering 
Baines  v.  Barnes 
Bair  y.  Robinson 
Baker  v.  Baker 

v.  Barney 

v.  Bolton 

v.  Bradley 

v.  Braslin 

v.  Carter 

v.  Flourney 

v.  Gregory 

v.  Haldeman 

v.  Hall 

v.  Harder 

v.  Hathaway 

v.  Jordan 

v.  Kennett 

v.  Kilgore 

v.  Lamb 

v.  Lovett 

v.  Morris 

v.  Ormsby 

v.  Richards 

v.  Stone 

v.  Wood 

v.  Young 
Baker's  Trusts,  In  re 
Balcli  v.  Smith 
Baldwin  v.  Carter 

v.  Foster 

v.  Rosier 
Ball  v.  Ball 

v.  Bennett 

v.  Bullard 
Ballard  v.  Brummitt 

v.  Russell 

v.  Ward 
Ballentine  v.  White 
Ballin  v.  Uillage 
Baltimore,  &c.  R.  R.  Co.  v. 
Banbury  Peerage  Case 
Bancroft  v.  Heirs 
Bangor  v.  Redfield 
Bank  v.  Durant 

v.  Scott 
Bank  of  Virginia  v.  Craig 
Banker  v.  Banker 
Banks  v.  Conant 
Bannister  v.  Bannister 

v.  Bull 
Ban  ton  v.  Campbell 
Barbat  v.  Allen 
Barbee  v.  Armstead 
Barber  v.  Harris 


SECTION 

241 
462 
145 
37G 
137 
105 
271 
413 
238 
211 
23,  252a 

(38 

78 
271 

75 

64 

89 
155 
203 

84 
324 
150 
181 
437 
114 
398 
407,  431 
263 
343 
353 
426 
367 

75 

109 

299 

176,  198 

237,  241 

402 

246,  304 

75 
328 
367 

77 
232 

53 
136 
429 
225 


State 


267a 

187 

143 

381 

18 

252a 

335 

89 

193,  398 

63 

41 

90 


Barber  v.  Hibbard 

v.  Slade 

v.  State 
Barbo  v.  Rider 
Barbour  v.  Barbour 
Barclay  v.  Plant 

v.  Roberts 

v.  Waring  180, 

Bard  v.  Wood 

Barham  v.  Earl  of  Clarendon 
Barker  v.  Circle 

v.  Dayton 

v.  Dixie 

v.  Morrill 

v.  Wilson 
Barkshire  v.  State 
Barlow  v.  Bishop 

v.  Grant 
Barnaby  v.  Barnaby  385, 

Barnard  v.  Ford 
Barncord  v.  Kuhn 
Barnes  v.  Barnes 

i'.  Branch 

v.  Compton 

v.  Ehrman 

v.  Harris 

v.  Hazleton 

v.  Keene 

v.  Moore 

v.  Powers 

v.  Toye 

v.  Trafton 

v.  Wyethe 
Barnet  v.  Commonwealth 
Barnett  v.  Leonard 
Barney  v.  Parsons 

v.  Saunders 

v.  Seeley 
Barnum  v.  Barnum 

v.  Frost 
Barr  v.  Armstrong 
Barrack  v.  M'Culloch 
Barrere  v.  Barrere 
Barrett  v.  Churchill 

v.  Cocke 

v.  Davis 

v.  Provincher 

v.  Seward 
Barron  v.  Barron 
Barrow  v.  Barrow 
Barry  v.  Barry 

v.  Clarke 
Bartholemew  v.  Finnemore 
Bartlett,  Ex  parte 

v.  Bartlett 

v.  Cowles 
Bartley  v.  Richtmeyer 
Barton  v.  Beer 

v.  Morris 
Barwick  v.  Rackley 
Basford  v.  Peirson 


SECTION 

412 

91 
279 
293 
218 
391 
278 
221,  355 
372 
174 
150 

66 

53 
188 
405 

17 

163 

240 

407,  435 

85 

377,  398 

249 

319 

388 

94 

75 
272 
258 
81,  162 
316 
413 
370,  377 

24 
343 
486 
348 
354 
351 

26 
339 

63 

106 

191,  248 

361 

351 

137 

312 

394 

162,  394 

174 

304 

361a 

446 

334 

137, 198 

313 

261 

168,  313 

23 

449,  450 

150 


XXX 


TABLE   OF   CASES. 


SECTION 

Bass  v.  Cook  335 

Bassett  r.  Bassett  24,  191 

Batchelder  v.  Sargent  148 

Bates  v.  Brockport  Bank  155 

v.  Dandy  88 

v.  Elder  277 

Battell  v.  Torrey  361a 

Battle  v.  Vick  304 

Bauer  v.  Bauer  145 

v.  Boles  377 

Bavington  v.  Clark  419 

Baxter  v.  Bush  424,  441 

v.  Prickett  162 

Bay  v.  Gunn  435 

Bayard  v.  Hoffman  186 

Bayler  v.  Commonwealth  94 

Baylis  v.  Dinely  404 

Bayne  v.  People  485 

Bayspoole  v.  Collins  188 

Bazeley  v.  Forder  66,  237 

Beach  v.  Ranney  77 

v.  White  187 

Beachcroft  v.  Beachcroft  281 

Beagley  v.  Harris  313 

Beal  i>.  Harmon  348 

v.  Warren  150,  187 

Beall  v.  Beall  228 

Beam  v.  Fromberger  385 

Bean  v.  Morgan  486 

v.  Smith  187,  377 

Bear  v.  Hays  162 

Bear's  Administrator  v.  Bear  120  a 

Beard  v.  Dean  301,  306 

v.  Webb  163,  300 

Beardsley  v.  Hotchkiss  402 

Bearinger  v.  Pelton  451 

Beasley  v.  Harris  313 

v.  Magrath  239 

v.  State  51,  194  a 

v.  Watson  339,  352 

Beason  v.  State  398 

Beatty  v.  Jolmson  329 

Beau  r.  Kiah  162 

Beaudry  v.  Felch  155 

Beaufort  v.  Collier  124 

,  Duke  of,  v.  Berty  246,  316 

Beaver  v.  Lane  89 

Beavers  v.  Brewster  343 

Beazley  v.  Harris  384 

Becher,  Ex  parte  320 

Becker  < .  Gibson  265 

v.  Mason  423 

Bedell  v.  Bedell  248,  249,  277 

>■.  Constable  286,  320 

Bedford  n.  Bedford  238,  255,  290 

r.  Burton  91,  97,  151 

v.  M'Kowl  281 

Bedlnger  v.  Wharton  446 

Beebe      I  >  b  itirook  272 

Beech  < .  Keep  189 

Beecher  v.  Crouse  343 


SECTION 

Beedle  v.  State  388 

Beeler  v.  Bullett  402 

v.  Dunn  338 

v.  Young  404,  411,  413 

Beidler  v.  Friedell  361 

Belford  v.  Crane  187 

v.  Scribner  166 

Belinger  v.  Shafer  351 

Bell,  Ex  parte  290 

v.  Bumpus  268 

v.  Jasper  367 

v.  Morrison  436 

v.  Rudolph  367 

Bellairs  v.  Bellairs  32 

Bellamy,  Re  87 

v.  Thornton  338 

Bellefontaine,  &c.    R.    R.    Co.    v. 

Snyder  429 

Beller  v.  Jones  251 

v.  Marchant  408 

Bellows  p.  Litchfield  95 

v.  Rosenthal  165,  307 

Bellune  v.  Wallace  367 

Belt  v.  Ferguson  357 

Belton  v.  Briggs  435,  439 

v.  Hodges  408 

Bemis  v.  Bemiss  29 

v.  Call  288 

Benadum  v.  Pratt  219,  486 

Benham  v.  Bishop  435 

Benison  v.  Worsley  307 

Benjamin  v.  Bartlett  75 

v.  Benjamin  58 

Bennett  v.  Allcott,  248,  249,  256,  261. 

272 

v.  Bennett  41 

v.  Byrne  305,  366 

v.  Collins  435 

v.  Davis  104,  406 

v.  Gillett  266 

v.  Hanifin  372 

v.  Mattingly  95 

v.  Morton  472 

v.  Welder  398 

Benson  v.  Benson  107,  108,  377 

v.  Morgan  162 

v.  Remington  252 

Bent  v.  Manning  411,  413 

Bentley  v.  Shrove  354 

D.  Simmons  120 

v.  Terry  251 

Benzigger  v.  Miller  252  a,  268 

Bercy  v.  Lavretta  127 

Bergen  v.  Udall  271 

Bergh  >•.  Warner  61 

Berkmeyer  v.  Kellerman  389 

Berry  v.  Johnson  306 

v.  Owens  277 

o.  Teel  162 

Berthelmy  v.  Johnston  492 

Besant,  lie  218,  235,  479,  480 


TABLE   OF    CASES. 


XXXI 


SECTION 

Besant  v.  Wood  218,  480,  481,  482 

Besondy,  Re  237,  239,  273 

Bessee  v.  Pellochoux  222 

Best  v.  Crivens  435 

Bethlem  v.  Roxbury  278  a 

Bethune  v.  Green  349 

Betsinger  v.  Chapman  29 

Bettle  v  Wilson  473 

Betton's  Trust  Estates,  In  re  88 

Betts  v.  Betts  154 

v.  Carrls  435,  446 

Betz  o.  Mullin  331 

Beverson's  Estate  26,27 

Bevier  v.  Galloway  66 

Bevis  v.  Heflin  349,  385,  386 

Bibb  v.  State  50 

Bickel  v.  Erskine  407 

Bickerstaff  v.  Marlin  388 

Bicknell  v.  Bioknell  444 

Bigaonette  v.  Paulet  41 

Bigelow  u.  Grannis  444 

v.  Sickles  53 

Bill  v.  Cureton  186,  189 

v.  Halenback  270 

v.  McKinley  326 

Bingham  v.  Barley  405 

Binion  v.  Miller  389 

Binnington  v.  Wallis  279 

Birch  v.  Linton  405 

Birchall,  In  re  448 

Bird  v.  Davis  176 

v.  Pegg  449 

v.  Pegrum  107 

Birdsong  v.  Birdsong  390 

Birtwhistler  v.  Vardill  227,  231 

Biscoe  v.  Kennedy  134 

Bishop,  In  re  235 

v.  Bishop  38 

v.  Blair  98 

v.  Shepherd  252  a 

v.  Wall  183 

Bissell  v.  Bissell  26,  27 

Bitner  v.  Boone  53 

Bitter  v.  Rathman  169 

Bixler  v.  Sellman  273 

Black  v.  Black  485 

v.  Bryan  66,  324 

v.  Galaway  94 

v.  Hills  439 

v.  Kaiser  382 

v.  Walton  360 

v.  Whitall  270 

Blackburn  v.  Crawford  29,  225 

v.  Maddy  241 

Blacklow  v.  Laws  105 

Blackman  v.  Baumann  361 

v.  Davis  449 

Blackmore  v.  Brider  16 

v.  Shelby  348 

v.  State  398 

Blades  v.  Free  212 


Blaechinska  v.  Howard  Mission 
Blaggre  v.  Moseley 
Blair  v.  Chicago  R. 


Blake  v.  Blake 

v.  Hall 

v.  Leigh 

v.  Nelson 

v.  Pegram 

v.  Potter 
Blanchard  v.  Usley 

v.  Moors 


43 

261 

77 

94;  322 

148 

235,  246 

486 

322,  343,  372,  374,  376 

380 

261 

53 


Blanford  v.  Marlborough  182 

Blankenship  v.  Stout  439 

Blanser  v.  Diehl  361,  369 

Blaymire  v.  Hall  261 

Bledsoe  v.  Britt  316 

Blevins  v.  Buck  114 

Bliss  v.  Sheldon  367 

Blodget  v.  Brinsmaid  16 

Blodwell  v.  Edwards  281 

Blomfield  v.  Eyre  381 

Blood  v.  Harrington  449 

Bloodgood  v.  Meissner  162 
Bloomingdale  v.  Chittenden      119,  403 

Blount  v.  Bestland  81 

Blue  v.  Marshall  343 

Blum  v.  Harrison  402 

Blumenberg  v.  Adams  486 

Blumenthal  v.  Tannenholz  230 

Blunt  v.  Melcher  420 

Blythe  v.  Ayres  231,  232 
Boatman's  Savings  Bank  v.  Collins    146 

Bobo  v.  Birson  268 

v.  Hansell  437 

Bodine  v.  Killeen  168 

Boggs  v.  Adger  363 

Bohn  v.  Head  ley  270 

Boisseau  v.  Boisseau  347 

Boland  v.  Klink  148 

Bold  v.  Hutchinson  180 

Bolingbroke  v.  Kerr  86 

Bolman  v.  Overall  122 

Bomar  v.  Mullins  398 

Bond,  Ex  parte  304,  307,  328 

v.  Armstrong  367 

v.  Dillard  295 
v.  Lockwood  237,350,367,  376,  388 

v.  Miller  267  a 

Bones's  Appeal  382 

Bongard  v.  Cone  153 

Boniiam  v.  Badgley  16 

Bonneil  v.  Holt  448 

Bonneson  v.  Aiken  94 

v.  Bonnett  251 

Bonney  v.  Reardin  56,  415 

Bonsall's  Case  347 

Bonslaugh  v.  Bonslaugh  89 

Boobier  v.  Boobier  269  a 

Boody  v.  M. 'Kinney  435,  439,  441 

Booker  v.  Worrill  187,  377,  391 

Bool  v.  Mix  405,  409,  440 


xxxn 


TABLE   OF   CASES. 


Boon  v.  Bowers 

Booth  t\  Wilkinson 

Boots  v.  Griffith 

Borst  v.  Spelman 

Bort,  In  re 

Borton  v.  Borton 

Boruff  r.  Stipp 

Boss  v.  Gomber 

Boston  Bank  v.  Chamberlain 

Bostwiek,  In  re 

v.  Atkins 
Bosville  v.  Attorney-General 
Botham  v.  M'Intier 
Botsford  v.  Wilson 
Boucknight  v.  Epting 
Bounell  v.  Berry  hi  11 
Bourne  v.  Maybin       311,  313, 
Bow  den  v.  Gray 
Bowe  v.  Bowe 
Bowen  v.  Sebree 
Bowers  v.  Bowers 

i?.  Van  Winkle 
Bowles  v.  Dixon 
Bowman  v.  Asli 

v.  Kaufman 
Bowman's  Appeal 
Bowser  v.  Bowser 
Bowyer's  Appeal 
Boyce  v.  Bedale 

i\  Boyce 
Boyd  v.  Blaisdell 

v.  Boyd 

v.  Gault 

v.  Nebraska 

v.  Porter 

v.  Sappington 
Boyden  v.  Boyden 
Boyers  v.  Newbanks 
Boyett  i'.  Hurst 
Boykin  v.  Ciples 
Boyle  v.  Brandon 
Boynton  v.  Clay 

v.  Dyer 

v.  Hubbard 
Bozarth  v.  Largent 
Bozeman  v.  Browning 
Bracketl  v.  Wait 
Bradford  v.  Bodfish 

v,  I  Iyer 

r.  ( Ireenway 

v.  Johnson 
Bradley  v.  Hughes 

v.  Pratt  401, 

V.  Slate 

Bradshaw  >\  Beard 

/.  Bradshaw 
Bradstreel  v.  Baer 
BrAiden  v.  Mercer 
Braly  <    Reel 
Brame  v   McGee 
Branch  v.  De  Bose 


SECTION 

SECTION 

338 

Brand  v.  Abbott 

353,  354 

352 

Brandon  v.  Brown 

446 

162 

Brantley  v.  Wolf 

439,  446 

189,  385 

Bratney  v.  Curry 

206 

249 

Bray  v.  Wheeler 

268 

399 

Brayshaw  v.  Eaton 

413 

352 

Brazier  v.  Clark 

368 

154 

Breadalbane  v.  Chandos 

182 

438 

Breadalbane's  Case 

26,27 

240,  338 

Bredin  v.  Dwen 

337 

439 

Breed  v.  Cran 

308 

225 

v.  Judd 

411,  443 

347 

v.  Pratt 

308,  380 

58 

Bremen  v.  Paasch 

41 

114 

Brendle  v.  Herron 

403 

332 

Brenham  v.  Davidson     330,  361,  361  a 

348,  372 

Brent  v.  Grace 

372 

81 

Bressler  v.  Kent 

94 

275 

Brevard  v.  Jones                  116 

203,  425 

124,  192 

Brewer  v.  Hamor 

226 

13,  16 

v.  Maurer 

152 

38,  152 

Briaster  v.  Compton 

248,  251 

304 

Brick  v.  Campbell 

119 

162 

Bridge  v.  Bridge 

384 

344 

v.  Brown 

240 

350 

Bridgman  i\  Bridgman 

84 

187 

Briers  v.  Hackney 

388 

89 

Briggs  v.  Briggs 

48, 187 

231 

v.  McCabe 

274,  409 

38,  42 

v.  Morgan 

20 

2G0 

v.  Titus 

151,  201 

368 

Brigham  v.  Boston,  &c.  R.  R. 

Co.     308 

367 

p.  Fawcett 

188 

230 

v.  Wheeler 

299 

81 

Brinkley  v.  Attorney-General 

32  a 

241,  269 

Briscoe  v.  Johnson 

372 

435,  441 

Bristor  v.  Bristor 

118,  ]55 

350 

Bristow  v.  Eastman 

424 

353 

Brittain  v.  Cannady 

381 

112,  123 

v.  Crowther 

162 

261 

Britton  v.  Williams 

407 

450 

Brock  17.  State 

226 

388 

Brockbank  v.  Whitehaven  Junc- 

272 

tion  Ti.  11.  Co. 

77 

89,  212 

Broderick  v.  Broderick 

269,  274 

402 

Bronson  v.  Southbury 

429 

94 

Brookbank  i*.  Kennard 

187 

339 

Brooke  v.  Brooke                  29 

, 106,  485 

372 

Brooker  v.  Scott 

411 

136 

Brookfield  v.  Allen 

67 

169 

r.  Warren 

237 

107,  108 

Brooks  c.  Brooks 

369,  381 

412,414 

v.  Dent 

175 

48 

I;.  Everett 

449 

199 

r.  Rayner 

367 

239,  322 

v.  Shelton 

155,  401 

169 

17.  Tobin 

367 

377 

Brow  v.  Brightman 

237,  239 

303 

Brown  v.  Ackroyd 

61 

174 

17.  Bclmard 

226 

386 

17.  Black 

407 

TABLE   C 

>F   CASES. 

XXX111 

SECTION 

SECTION 

Brown  v.  Bonner 

183 

Buchanan  v.  Grimes 

372 

v.  Bookee 

83 

v.  Lee 

114 

v.  Brown                189, 

198,  343,  399 

v.  Turner 

464 

v.  Burk 

272 

Bucher  r.  Ream 

81 

v.  Caldwell 

402,  432 

Buck  v.  Ashbrook 

126 

v.  Carey 

151 

v.  Buck 

237 

v.  Carter 

188 

v.  Fischer 

86 

v.  Cliadwick 

388 

v.  Gibson 

155 

v.  Chancellor 

1G9 

v.  Goodrich 

89 

v.  Christie 

361 

v.  Lee 

97 

v.  Clark 

105 

v.  Wroten 

124 

v.  Deloach 

241 

Buckingham  v.  Buckingham 

45 

v.  Dunham 

350 

Buckley  v.  Dunn 

168 

v.  Fifield 

75 

v.  Howard 

238 

v.  Gale 

89 

v.  Wells                        153, 

154,  168 

v.  Hartford  Ins.  Co. 

402 

Buckmaster  v.  Buckmaster 

390,  399 

v.  Johnson 

124 

Buckner  v.  Davis 

136 

v.  Jones 

175 

Bucksport  v.  Rockland 

267  a 

v.  Knapp 

269,  272 

Buckworth  v.  Buckworth 

238 

v.  Laselle 

57 

Buell  v.  Sherman 

95 

v.  Lynch 

230,  303 

Buford  v.  Speed 

72 

v.  McCune 

425 

Bulkley  v.  Noble 

272 

v.  McDonald 

270 

Bullard  v.  Briggs 

188 

v.  Midgett 

66 

Bullen,  Ex  parte 

251 

v.  Mullin 

338 

Bullock  v.  Babcock 

423 

v.  Orr 

58 

v.  Knight 

87 

v.  Pat  ton 

66 

v.  Knox 

225 

v.  Peck 

218,  475 

Bullpin  v.  Clarke 

134 

v.  Probate  Judge 

366 

Bumpus  v .  Dotson 

366 

v.  Ramsay 

252 

Bundy  v.  Cocke 

149 

v.  Scott 

270 

Bunn  v.  Winthrop 

281 

v.  Smith 

238 

Burcher  v.  Ream 

154 

v.  Snell 

295 

Burdeno  v.  Amperse 

S97 

v.  Welsh 

273 

Burdett  v.  Cain 

343 

v.  Westbrook 

19 

Burdick  v.  Babcock 

235 

v.  Wood 

53 

v.  Burdick 

158 

v.  Yargan 

337 

Burge  v.  Burge 

183 

Brown's  Appeal 

337 

Burger  v.  Belsley 

77 

Browning  v.  Reane 

18 

v.  Frake 

332 

Bruce  v.  Burke 

21 

Burgess  v.  Burgess 

16 

v.  Doolittle 

388 

Burgett  v.  Wilfiford 

393 

v.  Griscom 

272 

Burghart  v.  Angerstein 

413 

v.  Nicholson 

193 

v.  Hall 

113 

v.  Wood 

89 

Burk  v.  Piatt 

167 

Bruner  v.  Bruner 

42 

v.  Serrill 

94 

v.  Wheaton 

148 

Burke  v.  Louisville  R.  R. 

254 

Brunnel  v.  Witherow 

171 

Burke,  Matter  of 

238 

Brunson  ;.'.  Brooks 

366 

Burkett  v.  Trowbridge 

71 

Brunswick  v.  Litchfield 

31 

Burkholiler's  Appeal 

218 

Brush  v.  Blanchard 

273 

Burleigh  v.  Coffin                  83, 

203,  425 

Bryan  ?•.  Duncan 

124 

Burlen  v.  Criffin 

133 

v.  Jackson 

241 

Burley  v.  Russell 

425 

v.  Lyon 

249 

Rurlingame  v.  Burlingame 

267 

v.  Rooks 

200 

Burnard  v.  Haggis 

424 

Bryant  v.  Bryant 

155 

Burnett  v.  Burnett 

326 

v.  Craig 

353 

v.  Dalling 

372 

v.  Manning 

361 

v.  Hawpe 

129 

t'.  Merrill 

114 

Burnham  v.  Dalling 

388 

v.  Richardson 

411 

v.  Holt 

253 

Bryce  v.  Wynn 

390 

v.  Seaverns 

423 

Bubbers  v.  Hardy 

86 

Burns  v.  Hill 

424 

XXXIV 


TABLE    OF    CASES. 


267  a, 


SECTION 

51 

241  a 

94 

;u9 
448 
447 
287 
388 
248 
114 
208 
221 
324 
386 
450 
49 
70 

408,  451 
241 

225,  227 
416 


249, 


Burns  v.  Kirkpatrick 
v.  Madigan 
v.  McGregor 

Burr  v.  Wilson 

Burras  v.  Burras 

Burris  v.  Page 

Burritt  v.  Burritt 

Burrow  v.  Gilbert 

Burrus,  Re 

Burson's  Appeal 

Burton  v.  Pierpont 
v.  Sturgeon 
v.  Tunnell 

Burwell  v.  Burwell 
v.  Corbin 

Busb  v.  Bush 
v.  Lindsey 
v.  Lintbicum 

Bushnell  v.  Bp.  Hill  Colony 

Bussom  v.  Forsyth 

Butler  v.  Breck 

v.  Buckingham  94 

v.  Freeman  246,  288 

v.  Gastril  16 

v.  Winona  Mill  Co.  473 

Butterfield  v.  Ashley  260 

v.  Beal  90 

v.  Heath  175,  188,  380 

v.  Slam  273 

f.  Stanton  188,  380 

Button  v.  Higgins  461  a 

Bybee  f.  Thorp  238,  388 

Byers  v.  Des  Moines,  &c.  R.  R.  Co.   450 
v.  Thompson  270 

Byrd  v.  Tuipin  360 

Byrne  v.  N.  Y.  Central  Railroad       428 
v.  Van  Hoesen  290,  311 

c. 

Cade  f.  Davis  189 

Cadwallador  p.  McClay  424,  431 

Cadwell  v.  Sherman  2*2  a 

Caffee  v.  Kelly  82 

Caffey  p.  McMichael  389 

Caflfrey  v.  Darby  352 

Cahill  f.  Cahill  94 

v.  Lee  97 

r.  Patterson  252a 

Calame  v.  <  lalame  221 

well  v.  Drake  57 

(  :il  1  ion m  '•.  Calhoun  374 

I  alkins  f.  Long  68 

Call  v.  Perkins  119 

f.  Ruffln  377 

f'ab.ia.ly  r.  Calmady  208,431 

Calvert  f,  Godfrey  ;-"»7 

( lamden  f.  Mullen  169 

( lamelin  p.  Palmer  Co.  72 

Cameron  f.  Baker  279 

v.  Malcolm  24 


SECiiC.w 

Cammack  v.  Lewis 

210,  436 

Camp,  Be 

382 

v.  Pittman 

300 

v.  Smith 

120 

Campan  f.  Shaw 

295 

Campbell  v.  Campbell     254,  267  a,  270 

v.  Cooper 

252,  252  a 

v.  Galbreath           80 

117,  189,  191 

v.  Golden 

338 

v.  Gullatt 

26 

v.  Ingleby 

399 

v.  Mackay 

235,  334,  340 

v.  Potter 

269 

v.  Quackenbush 

486 

7'.  Stakes 

263,  424 

v.  Twemlow 

53 

v.  Wallace 

203,  425 

Campbell's  Appeal 

390 

Canajoharie  v.  Johnson 

278  a 

Canby  v.  Porter 

89 

Candy  v.  Coppock 

59 

Caney  v.  Bond 

352 

v.  Patton 

61,  63,  68 

Cannel  v.  Buckle 

175,  176,  399 

Cannon  f.  Alsbury 

29,  402 

Canover  v.  Hooper 

252  a 

Cantine  r.  Phillips 

70 

Cape  f.  Cape 

105 

Capel  v.  Powell 

221 

Capps  v.  Capeheart 

341 

v.  Hickman 

339 

Card  v.  Jaffray 

177 

Cardress,  In  re 

399 

Carey  v.  Berkshire  R. 

•       77,  78 

v.  Bnrruss 

169 

Carey's  Estate,  Re 

457 

Carl  f.  Wonder 

75 

Carleton  v.  Lovejoy 

82 

Carlisle  v.  Town  of  Sheldon 

v.  Tuttle 

230,  329 

Carll  v.  Prince 

20 

Carlyle  v.  Carlyle 

358 

Carmichael  f.  Hughes 

238 

v.  Wilson 

338 

Carnahan  v.  Allderdice 

404 

Carne  v.  Brice 

106 

Carpenter  v.  Carpenter 

140,  425,  446 

v.  Franklin 

161,  162 

v.  Leonard 

151 

v.  McBride 

349 

v.  Mitchell 

148 

v.  Osborn 

217,  218 

v.  Pridgen 

426 

v.  Schermerhorn 

o" 

Carr  v.  Askew 

3l 

v.  Branch 

44b 

v.  Carr 

82,  249 

v.  Clough 

407,  409,  446 

v.  Taylor 

83 

Carroll  v.  Carrell 

435 

v.  Potter 

407,  440 

TABLE   OF   CASES. 


XXXV 


SECTION 

Carroll  v.  Blencow 

486 

v.  Corbitt 

377 

r.  McCoy 

273 

Carrow  v.  Mo  watt 

304 

Carshadden  v.  McGhee 

343 

Carson  v.  Murray 

451 

v.  Watts 

252  a 

Cart  i\  Rces 

415 

Carter  r.  Aiulerson 

248 

v.  Carter                        114 

,21c 

,  474 

v.  Grimshaw 

270 

v.  Howard 

64 

v.  Lipsey 

349 

v.  Montgomery 

111 

v.  Towne 

428 

v.  Wann 

212 

438 

Carter's  Appeal 

183 

Cartlidge  v.  Cutliff 

173 

Cartwright  v.  Bate 

69 

v.  Cartwright 

118 

Carutliers  v.  Caruthers 

399 

Carver  v.  Carver 

448 

Cary  ;;.  Cary 

386 

Case  v.  Colter 

194 

v.  Phelps 

187 

Casey  v.  Smith 

429 

Cassedy  n.  Casey 

386 

v.  Jackson 

86 

Cassier,  Re 

423 

Cassin  v.  Delany 

75 

Castle  v.  Wilkinson 

93 

Castlebury  v.  Maynard 

222 

Caswell  v.  Hill 

187 

Cateret  v.  Paschal 

87 

Cathcart  v.  Robinson 

187 

Cathin  v.  State 

395 

Catlin  v.  Haddox 

404 

435 

Cato  v.  Gentry 

349 

Caton  v.  Ilideout 

131 

Caughey  v.  Smith 

260 

Caujold  v.  Ferry 

225 

Caulk  i7.  Picou 

7 

Cave  v.  Roberts 

205 

427 

Central  R.  R.  v.  Brimson 

430 

Certwell  v.  Hoyt 

261 

Chadbourn  v.  Williams 

120 

Chadbourne  v.  Rackliff 

440 

Chadwell  v.  Wheless 

176 

Chamberlain  v.  Hazlewood 

77 

Chambers  v.  Terry 

82 

390 

v.  Richardson 

116 

v.  Sallie 

177 

Chambles  v.  Vick 

345 

Champney,  Ex  jiarte 

319 

Chamller  v.  Commonwealth 

395 

v.  Deaton 

263 

v.  Glover 

435 

437 

v.  Mc Kinney 

404 

v.  Morgan 

137 

v.  Simmons 

380, 

446 

Chaney  v.  Smallwood 

372 

SECTION 

Chanslor  v.  Chanslor  386,  388 

Chapin  v.  Chapin  221 

v.  Livermore  367 

Chapline  v.  Moore  338 

Chapman  v.  Biggs  110 

v.  Foster  148 

v.  Gray  217,  473 

v.  Hughes  413 

v.  Tibbets  342,  352 

v.  Williams  145 

Chappell  v.  Doe  448 

v.  Nunn  61,  67 

Chappie  v.  Cooper       199,  212,  413,  415 

Charles  v.  Charles  363 

v.  Coker  124,  137 

Charley  v.  Kelley  451 

Chase  v.  Chase  221 

v.  Elkins                 .  268 

v.  Hathaway  308,311 

v.  Smith  267  a 

Chatterton  v.  Young  143 

Cheatham  v.  Hess  188,  380 

Cheek  v.  Waldrum  89 

Cheely  v.  Clayton  221 

Cheeney  v.  Roodliouse  351 

Cheever  v.  Congdon  388 

v.  Wilson  132,  133 

Cheney  v.  Arnold  27 

v.  Pierce  72,  452 

v.  Roodliouse  350 

Cherokee  Lodge  v.  White  114 

Cherry  v.  Wallis  316 

Cheshire  v.  Barrett  435,  441 

Chesley  v.  Chesley  53 

Chester's,  Lady,  Case  299 

Chetwynd  v.  Chetwynd  249 

Cheuvette  v.  Mason  154 

Chew  v.  Chew  390 

Chew's  Estate  316 

Chicago,  City  of,  v.  Major  429 

v.  Ross  492 

v.  Starr  429 

Chicago  Life  Association  v.  Hunt     446 

Chicago  Mutual  Associations.  Hunt  417 

Chicago  R.  v.  Robinson  429 

Child  v.  Sampson  150 

Childress  v.  Mann  67 

Childs  v.  McChesney  155 

v.  Smith  454 

Chilton  D.  Cabiness  381 

Chitwood  v.  Cromwell  343 

Chorpenning's  Appeal  348,  386 

Chretien  v.  Husband  36 

Christensen  v.  Stumpf  170 

Chubb  v.  Bradley  388 

v.  Stretch  172 

Cliunot  v.  Larson  72 

Churchill  v.  Dibben  106 

City  Bank  v.  Kusworm  58 

City  Council  v.  Van  Roven  58 

City  of  Pekin  v.  McMahon  428 


XX  XVI 


TABLE   OF   CASES. 


SECTION 

SECTION 

City  Savings  Bank  v.  Wl 

little 

407 

Clement,  Re 

316,  3  Hi 

Clamorgan  v.  Lane 

439 

Clemment  v.  Mattison 

18 

Clanton  v.  Burges 

187,  377 

v.  Sigur 

317,  343 

Clapp  v.  Greene 

254 

Clemments  v.  Crawford 

225 

v.  Stoughton 

83, 1 

Clerk  v.  Laurie 

134,  138 

Clarges  v.  Albermarle 

204,  431 

Clevestine's  Appeal 

124 

Claridge  v.  Crawford 

449,  450 

Clifford  v.  Laton 

63 

v.  Evelyn 

394 

Clinton  v.  Goodburn 

281 

Clark,  In  re 

337 

v.  Rowland 

241 

Re 

235 

Clodfelter  v.  Bost 

352 

v.  Bank  of  Missouri 

118 

Cloud  v.  Hamilton 

252  a,  267  a 

v.  Boyer 

75,  251 

Clough  v.  Bond 

198 

v.  Burnside 

350 

v.  Clough 

399 

v.  Casley 

343 

Clowes  v.  Van  Antwerp 

348,  388 

v.  Cassidy 

22 

Coates  v.  Gerlach 

189 

v.  Clark         40,  114, 

193, 

222,  241, 

v.  Wilson 

411 

39S,  415,  423 

Cobb  v.  Kempton 

382  a 

v.  Cordis 

303,  330 

Cochran  v.  Kerney 

398 

v.  Field 

23,  26 

v.  McBeath 

174,  175 

v.  Fitch 

267  a 

v.  State 

260 

v.  Garfield 

353 

Cochrane,  In  re 

45 

v.  Goddard 

420 

v.  Van  Sarlay 

330 

v.  Killian 

187 

Cockayne,  Ex  parte 

293 

v.  Koch 

328 

Cocke  v.  Garrett 

486 

v.  Leslie 

412,  414 

Cockerell  v.  Cockerell 

301 

v.  Montgomery 

304 

339,  377 

Codrington  v.  Codrington 

221 

v.  Patterson 

120  a,  192 

Coe  v.  Wager 

273 

v.  Hosenkrans 

188, 

380,  381 

Coe's,  In  trust 

240 

v.  Thompson 

398 

Coffin  v.  Bramlitt 

353 

v.  Tompkins 

352,  373 

;.\  Morrill 

92 

v.  Turner 

449 

v.  Shaw 

252  a 

v.  Van  Court 

387,  445 

Coham  v.  Coham 

301 

v.  Van  Surlay 

330 

Cohen  v.  Armstrong 

433 

v.  Watson 

450 

v.  Shyer 

33 

v.  Way 

369 

Cois  Trust,  In  re 

338 

v.  Wliitaker 

370 

Colburn  v.  State 

369,  377 

r.  Wilkinson 

367 

Colby  v.  Lamson 

168,  312 

v.  Wright 

281 

Colcock  v.  Ferguson 

404 

Clark's  Appeal 

322 

Colcord  v.  Swan 

95 

Clarke,  Re. 

340 

Cole  v.  Cole 

18,  21,  248 

v.  Burke 

61 

v.  Eaton 

330,  343 

v.  Clay 

372 

r.  Gourlay 

361,  363 

r.  Darnell 

319 

v.  Pennoyer 

439,  440 

r.  Jaques 

110 

v.  Seeley 

56 

>■.  McGeihan 

187,  377 

v.  Shurtleff 

56 

r.  Windham 

124 

v.  Superior  Court 

451 

Clarke's  Appeal 

89 

422,  404 

Coleman,  Ex  parte 

394 

<  Hausen  v.  La  Franz 

86 

v.  Davics 

388 

( llawson  v.  <  'lawson 

122 

v.  Ilallowell 

415 

v.  Hutchinson 

322 

v.  Semmes 

153 

CI  ax  ton  v.  Claxton 

453 

v.  Smith 

324 

( lay  ' .  Brittingham 

362 

Coles  )'.  Allen 

372 

v.  Clay 

354 

v.  Trecothick 

179,  180 

/■.  Shirley 

267  a 

Collar  v.  Patterson 

461 

Clayton  v.  McKinnon 

885 

Collet  v.  Dickinson 

158 

( 'leaveland  v.  Hopkins 

180,  305 

Collins  v.  Brook 

450 

r.  Mayo 

263 

r.  Collins              23,2 

17,220  6,473 

( '\'-A\  >r  r.  Kirk 

272 

v.  Hoxie 

281 

Cleghorn  '■.  Janes 

805 

r.  Mitchell 

66 

Clemi  ns  v.  Brillhart 

267  a 

/•.  Vining 

33!) 

Clemenstine  v.  Williamson 

436 

Colston  v.  Morris 

240 

TABLE   OF   CASES. 


XXXV11 


Colter  v.  Melntire 
Coltman  v.  Hall 
Colton  v.  Goodson 
Columbine  v.  Penhall 
Colvin  y.  Currier 

v.  State 
Comegys  v.  Clarke 


SECTION 

366 
332 
316 
174 
122 
317 
150 


Commissioners  of  Pooru.  Gantleft    237 

Commonwealth  v.  Addicks  248 

v.  Briggs  248 

v.  Cox  367,  377 

v.  Fee  278  a 

v.  Feeney  50 

v.  Fletcher  154 

v.  Gamble  420 

v.  Graham         71,  252  a,  267  a,  415 

v.  Green  395 

v.  Hamilton  237 

v.  Hutchinson  378 

v.  Lewis  50 

v.  Lynes  398 

v.  McAfee  44 

v.  Mead  395 

v.  M'Keagy  251 

v.  Munsey  50 

i'.  Munson  25,  27,  29 

v.  Murray  254 

v.  Perry  456 

v.  Ferryman  15 

v.  Pratt  50 

v.  Reed  333 

v.  Rhoads  329,  377 

v.  Richards  218 

v.  St.  John's  Asylum  251 

v.  Tryon  50 

Compton  v.  Collinson  462 

v.  Compton  305 

v.  Pierson  464 

v.  White  270 

Conant  >•.  Souther  337 

v.  State  Bank  169 

Conboy  v.  Howe  241 

Condon  v.  Hughes  253 

Cone  v.  Cone  220  b 

Conigland  v.  Smith  410 

Conkey  v.  Dickinson  324,  373 

Conlin  v.  Doul  165 

v.  Ogborn  437 

v.  Thompson  423 

Conley  v.  Portland  492 

Conklin  v.  Cantrell  143 

Conn  r.  Coburn  414 

v.  Conn  237 

Conn.  Life  Ins.  Co.  v.  McCormick    150, 

155 

Connecticut  Society's  Appeal  151 

Connel  v.  Putnam  258 

Connelly  v.  Weatherly  314 

Conner  v.  Stanley  183a 

Connolly  v.  Hull  413 

Conover  v.  Cooper  267  a 


SECTION 

Conrad  v.  Abbott 

64 

v.  Lane 

1 :.'.-. 

v.  Le  Blanc 

146 

v.  Shomo 

158 

v.  Starr 

423 

Conroe  v.  Birdsall               404, 

405,  425 

Continental  Bank  v.  Strauss 

408 

Converse  v.  Converse 

190,  :;;.<) 

Conway  v.  Reed 

423 

v.  Smith 

151 

Cook  v.  Baker 

172 

v.  Bradley 

265 

v.  Cook                           22, 

248,  452 

v.  Ligon 

70 

v.  Rainey 

374 

i.  Rogers 

448 

Cook's  Case 

305 

Cooke  v.  Beal 

317 

Cookson  v.  Toole 

158 

Coolidge  v.  Paris 

75 

v.  Smith 

150,  157 

Coombs  v.  Janvier 

380 

v.  Queen's  Proctor 

462 

v.  Bead 

114 

Cooney  v.  Woodburn 

127 

Cooper  v.  Alger 

162 

v.  Cooper                       193 

398,  485 

v.  Crane 

24 

v.  Ham 

166,  168 

v.  Hepburn 

361 

v.  MacDonald 

107,  420 

v.  Maddox 

196,  405 

v.  Martin                         61, 

237,  273 

v.  McNamara 

241 

v.  Rhodes 

392 

v.  State 

429 

v.  Summers 

303 

v.  Sunderland 

361 

v.  Thornton 

304 

r.  Whitney 

449 

Cooper's  Case 

316 

Copeland  v.  Cunningham 

165 

Copenrath  v.  Kienby 

380 

Copp  v.  Copp 

317 

Coppin  t'. 83 

Coppins  v.  N.  Y.  Central  R.  492 

Corbett  v.  Poelnitz  486 

v.  Tottenham  287,  318 

Corbitt  v.  Carroll  366,  382 

Corcoran  v.  Allen  339,  349 

Cordova,  Re  300,  305 

v.  State  278 
Corey  v.  Burton                  407,  409,  446 

v.  Corey  267  a,  268 

Corgell  v.  Dun  ton  l"»s 

Corlass,  In  re  225 

Corle}'  v.  Green  411 

Corn  >;.  Matthews  403 

Corpe  v.  Overton  408,  414 

Corrie  v.  Corrie  248 

Corrie's  Case  397 


XXXV111 


TABLE   OF   CASES. 


SECTION 

BE 

CTION 

Corrigan  v.  Kiernan 

299,  300,  311 

Crofts  i;.  Middleton 

134 

Corwin  v.  Shoup 

435,  448 

Cronise  v.  Clark 

404 

Cory  v.  Gertcken 

389 

Crook  v.  Hill 

281 

Cothran  v.  Lee 

6,  63,  64 

v.  Turpin 

160 

Cotteen  v.  Missing 

189 

Crooks  v.  Crooks 

378,  3! 

Cotterell  "■  Homer 

174 

v.  Turpin 

326 

Cottle  v.  Tripp 

380 

Cropsey  v.  McKinney 

32 

164 

Cotton  v.  Countess  of  Portsmouth      23 

Crosby  v.  Crosby 

374 

v.  State 

307 

v.  Hurley 

394 

v.  Wolf 

318 

v.  Merriam 

354 

Cottrel's  Estate,  In  re 

238,  239 

Crose  v.  Rutledge 

53 

Coughlin  v.  Ryan 

486 

Cross  v.  Cross 

217 

Counts  ».  Hates 

402 

v.  Grant 

41 

Courtright  v.  Courtright 

237,  241 

v.  Guthery 

77 

Coverdale  v.  Eastwood 

178 

v.  Noble 

94 

Covington  v.  Leak 

353 

Crotty  v.  Eagle 

453 

Cowan  v.  Anderson 

343 

Crouse  v.  Morse 

190 

391 

v.  Mann 

164,  165 

Crow  v.  Reed 

372 

Cowan's  Appeal 

389 

Crowell's  Appeal 

373 

Cowden  v.  Pitts               9C 

,  92,  239,  316 

Crozier  v.  Bryant 

77 

v.  Wright 

262 

Crozier's  Appeal 

206 

Cowell  v.  Daggett 

255 

Cruger  v.  Douglas 

190 

v.  Wright 

259 

v.  Ha}rward 

238 

Cowles  v.  Cowles 

20 

Crumb,  Ex  parte 

316 

v.  Morgan 

145 

Crummey  v.  Mills 

407 

Cowley  v.  People 

244 

Crump  v.  Gerock 

372 

v.  Robertson 

57 

v.  McKay 

77 

Cow  ton  v.  Wickersham 

94 

Crutchfield's  Case 

305 

Cox  v.  Coombs 

22 

Crymes,  Ex  parte 

316, 

347 

v.  Hoffman 

71,  72 

v.  Day 

402 

v.  Kitchin 

67,  143,  149 

Cuckson  p.  Winter 

394 

v.  McGowan 

439 

Culp  v.  Wilson 

272 

v.  Morrow 

198 

Culver's  Appeal 

380 

v.  Simmons 

448 

Cummings  v.  Cummings 

83,  220  b 

372 

v.  Storts 

240,  263 

17.  Everett 

442 

Cozzens  v.  Whitney 

136 

v.  Powell 

406 

409 

Craft's  Estate 

180 

Cummins  v.  Cummins 

206,  338 

374 

Craftsbury  v.  Greensboro 

267  a 

v.  Friedman 

189 

Craig  v.  Craig 

183  <j 

v.  Sharpe 

143 

v.  Morris 

446 

Cunningham  v.  Barnes 

251 

v.  Van  Bobber 

440,  446,  447 

i:  Cunningham 

227 

373 

Cramer  r.  Kedford 

81,  168 

17.  Pool 

374 

Crane  v.  Barnes 

372 

v.  Reardon 

199 

v.  Baudoine 

269 

Curry  v.  Bott 

120 

v.  Brice 

82 

v.  Fulkinson 

198 

v.  '  rane 

226 

v.  Turnbull 

27 

v.  Kelley 

145 

Curtin  v.  Patton 

404,  437 

445 

Cranston  v.  Sprague 

366 

Curtis  17.  Bailey 

373 

377 

(  r.inz  v.  Kruger 

253 

v.  Curtis 

250 

272 

( Irapster  v.  1  iritfith 

391 

p.  Engell 

128 

( !ra«  ford  v.  Verry 

414 

v.  Hobart 

350 

(  ray  v.  .Mansfield 

388 

v.  MeDougal 

446 

< Ireaze  V,  Hunter 

246 

17.  Rippon 

301 

( Iredle  v.  1  larrawan 

171 

Curton  v.  Moore 

56 

Crehore  v.  Crehore 

23 

dishing  r.  Blake 

420 

<  n  nshaw  v.  Creek 

342,  451 

v.  Cashing 

272 

r.  ( Irenshaw 

873 

Cushman  v.  Hassler 

241 

Cresinger  v,  Welch 

435,  439,  446 

Cutter  v.  Morris 

147 

Cricket  v.  Dolby 

281 

v.  Seabury 

260 

Crockett  v.  I  '"riot 

186 

Cutts  v.  Cutts 

373 

Croft  v.  Terrell 

317 

Cuyler  v.  Wayne 

361 

TABLE   OF   CASES. 


XXXIX 


D. 

SECTION 

Da   Cunha,   Countess   of,   Goods 

of  329 

Daggett  v.  Daggett  499 

Dagley  v.  Tolferry  280,  304 

Daine  v.  Wyckoff  201,  262 

Dakin  v.  Dakin  190 

Dale  v.  Robinson  130 
Daley   v.   Norwich   &  Worcester 

R.  R.  Co.  428,429 

Dallam  v.  Walpole  137 

Dallas  v.  Heard  20 

Dalrymple  v.  Dalrymple  23,  26 

D' Alton  v.  D'Alton  235 

Dal  ton,  In  re  399 

v.  Gib  413 

v.  Jones  339 

v.  State  298 

Da  Marrell  v.  Walker  316,  317  a 

Dana  v.  Coombs  438,  441 

v.  Stearns  435 

Daniel  v.  Hill  230,  234 

v.  Newton  306 

v.  Sams  225 

v.  Wliitman  82 

Daniels  v.  Edwards  261 

Dankel  v.  Hunter  94 

Dannelli  v.  Dannelli  226 

Danville  v.  Amoskeag  Co.  403 

Darby  v.  Calligan  148 

v.  Stribling  352 

Dardier  v.  Chapman  86 

Darkin  v.  Darkin  131 

Darley  v.  Darley  105,  238 

Darling  v.  Noyes  241 

Darlington  v.  Pulteny  90 

Darlington's  Appeal  155 

Darnaby  v.  Darnaby  401 

Daubenspeck  v.  Biggs  183 

Daubney  v.  Hughes  70,  71 

Davenport  v.  Bishop  174 

v.  Olmstead  377 

Davey  v.  Turner  94 

David  v.  St.  Vincent  Institution         07 

Davidson,  Matter  of  240 

v.  Graves  175 

v.  Johonnot  308,  330 

v.  Lanier  150 

v.  Young  439 

Davies  v.  Baugh  397 

v.  Davies  399 

v.  Jenkins  159 

v.  Solomon  77 

Davis  v.  Caldwell  411,  412,  413 

v.  Carroll  59 

v.  Coombs  372 

v.  Davis  90,  92,  188 

v.  Dickson  370 

v.  Din  woody  58 

v.  Dudley  405,  437,  439 

9.  Foy    '  104 


Davis  v.  Goodenougli 

v.  Harkness 

v.  Herrick 

v.  Hudson 

v.  Jones 

v.  Kane 

v.  Krug 

v.  Locket 

v.  McCurdy 

v.  Prout 

v.  Turton 

v.  Williams 
Davis's  Appeal 
Davison  v.  Atkinson 

v.  Gibson 
Dawes  v.  Howard 
Dawson,  Ex  parte 

v.  Dawson 

v.  Holmes 

v.  Jay 

v.  Massey 
Day  v.  Burnham 

v.  Croft 

v.  Everett 

v.  Messick 

v.  Oglesby 

v.  Padrone 
Dayton  v.  Dusenbury 

v.  Walsh 
Deakin  i\  Lakin 
Dean  v.  Bailey 

v.  Brown 

v.  Feeley 

v.  Metropolitan  R. 

v.  Richmond 

v.  Shelly 
Deane  v.  Annis 
Deare  v.  Sonten 
Deason  v.  Boyd 
Deaver  v.  Bane 


SECTIOK 

209,  273 

388 

187 

303,  308 

93 

124 

232 

450 

367 

105 

443 

261 

82,  92,  347 

104 

154 

239 

329 

205,  281 

405,  440,  446 

334 

384,  389 

64 

105 

252 

56 

252  a 

83 

114 

167,  168 

159 

154 

111 

385 

192 

222 

95 

241 

61 

435 

267  a 


De  Bathe  v.  Lord  Fingal  299 

Debenham  v.  Mellon  63 

Dedham  v.  Natick  239 

Deenis  v.  Deenis  64,  69,  485 

Deery  v.  Cray  94 

De  Farges  v.  Ryland  53 

Deford  v.  Mercer  385 
De  la  Montanie  v.  Union  Ins.  Co.     352 

Delano  v.  Blake  435 

v.  Blanchard  72,  82 
De  Mannville  v.  De  Mannville         288 

Demarest  v.  Wynkoop  94,  137 

De  Mazar  v.  Pvbus  300 
Deming  >:  Williams    189,  217,  385,  473 

Den  v.  Demarest  95 

v.  York  188 

Den  gate  v.  Gardiner  77 

Dengenhart  r.  Cracraft  370 

Denison  v.  Denison  26,  27 

Dennekor,  Be  303 

Dennis  v.  Clark  258 


x! 


TABLE   OF   CASES, 


SECTION 

Dennis  v.  Crittenden  53 

Dennysville  v.  Trescott  267  a 

Dent  v.  Bennett  389 

Derocher  v.  Continental  Mills  443 

De  Roo  v.  Foster  425 

Descelles  v.  Kadmus  60 

Deshon  v.  Woods  173 

Desnover  v.  Jordan  114 

Desribes  v.  Wilmer  287,  299 

v.  Winter  287 

De  Thoren  v.  Attorney-General  26,  27 

Devanbagh  v.  Devanbagh  20 

De  Voin  v.  Michigan  Lumber  Co.    461 

De  Witte  v.  Falin  356 

Dexter  >•.  Blanehard  241 

v.  Cranston  361 

Diaper  v.  Anderson  372 

Dibble  v.  Dibble  301,311 

v.  Jones  426 

Dickens  v.  New  York  Central  R. 

R.  Co.  78 

v.  Winchester  252  a 

Dickenson  v.  Blisset  18 

Dickerman  v.  Graves  53 

Dickerson  v.  Brown  26 

v.  Dickerson  316 

v.  Rogers  168 

Dickinson  v.  Talmage  252  a,  267  a 

Dicks  v.  Grisson  267  a 

Dickson  v.  Dickson  13 

Dierkes  v.  Hess  267  a,  268 

v.  Philadelphia  37,  205 

Diettrich  v.  Heft  348 

Dilk  v.  Keighley  408 

Dill  v.  Bowen  _     446 

Dillage  v.  Greenough  176,  183 

Dillon  v.  Bowles  407 

r.  Cashell,  Lady  Mount  318 

Disbrow  v.  Ilenshaw  316 

Ditcham  i\  Worrall  433 

Ditson  v.  Ditson  13 

Dix  v.  Grieson  267  a 

Dixon  r.  Dixon    110,  137,  140,  474,  476 

r.  Homer  376 

v.  Hurrell  69 

,.  \ferritt  96,  405,  438 

v.  Miller  128 

v    <  M  mi  us  105 

i  Mnliner  157 

i          n  b   Butler  221 

Somea  :>"s,i 

D        -    Benthal  '•'»'' 

1 1       e  v.  Favor  267  a 

v.  Km  128,  144  a 

I)... I-., n  b    M  '.A  dams  269 

/    Jackson  :'',;:; » 

r.  Manning  1  Bfi 

I    Roe  41 

,■_  RU  L86,  189,  383 

v.  Wcllcr  90 


8ECTIOK 

Doe  v.  Wilkins  87 

Doker  v.  Hasler  53 

Dollner  v.  8now  58 

Dominick  v.  Michael  402,  440 

Donahoe  v.  Richards  260 

Donegan  r.  Davis  267  a 

Donne  v.  Hart  88,  131 

Donnington  v.  Mitchell  197 

Donovan  v.  Needham  240 

Donovan's  Appeal  146 

Doolan  v.  Blake  110 

Dooley  v.  Bell  360 

Dorin  v.  Dorin  281 

Dorman  v.  Ogbourne  303 

Dorrell  v.  Hastings  411 

Douglas's  Appeal  372 

Douglass  v.  Ferris  377 

v.  Kessler  367 

r.  State  388 

v.  Watson  444 

Dove  v.  State  395 

Dow  v.  Eyster  61 

v.  Jewell  94 

Dowling,  In  re  94 

v.  Feeley  338 

v.  Maguire  134 

Downin  v.  Sprecher  363 

Downing  v.  Peabody  367 

v.  Sevmour  88 

Downs  v.  N.  Y.  Central  R.  R.  Co.     429 

Doyle  v.  Kelley  58 

Drake  v.  Ramsey  439 

Draper  v.  Draper  398 

v.  Jackson  154 

?•.  Joiner  354 

Draper's  Case                       .  87 

Dresel  v.  Jordan  60,  72 

Drew  v.  Drew  407 

v.  Oth  Avenue  262 

Druett  v.  Druett  279 

Drumm  v.  Keene  251 

Drurv  ;-.  Conner  350 

r.  Drury  399 

v.  Scott  107 

Drybutter  v.  Bartholomews  90,  91 

Drysdale  v.  State  41 

Dube"  v.  Beaudry  403,  407 

Dublin  &  Wicklow  R.  r.  Black         442 

Dubois  v.  Jackson  1 1  1 

Du  Bonlay  v.  Du  Bonlay  280 

Dubose  v.  Wheddon  404,  414 

Duckworth  v.  Johnson  259,  262 

Duddv  o.  Greshara  :;2 

Nuffield  v  Cross  252 

Duffies  v.  Duffies  41 

Duggan  v.  Wright  120  a 

Duke  »•.  State  803 

Dula  v    Young  126 

Dtill'8  Appeal  316 

1  )unKiin  r.  Gwyne  251 

Dumaresly  o.  Vlshly  26,  27 


TABLE   OF   CASES. 


Xli 


Dumas  v.  Neal 
Dunbar  v.  Mize 
Duncan  v.  Cashin 

v.  Crook 

v.  Duncan 

v.  Pope 

v.  Roselle 
Dunham  v.  Hatch 
Dunifer  v.  Jecko 
Dunn  v.  Lancaster 
Dunn's  Appeal 
Dunnahoe  o.  Williams 
Dunsford  v.  Brown 
Dun  ton  v.  Brown  408, 

Duntze  v.  Levett 
Dupey  r.  Welsford 
Dupre  v.  Rein 
Duquesne  Bank's  Appeal 
Durant  v.  Ritchie 
Durell  v.  Hay  ward 
Duress  v.  Horneffer 
Durham  v.  Durham 
Durnford  v.  Lane 
Durrant  v.  Ricketts 
Durrett  v.  Commonwealth 
Dutton  v.  Dutton 
Dye  v.  Dye 

v.  Kerr 
Dyer,  Case  of, 

Matter  of,  fc 

v.  Cornwall 
Dygert  v.  Remerschneider 

E. 

Eager  v.  Grim  wood  260, 

Eagle  Fire  Ins.  Co.  v.  Lent 
Eames  v.  Sweetser 
Earl  v.  Crum 

v.  Dawes 

v.  Dresser 
Earle  v.  Peele 

v.  Reed 
Early  v.  Owens 
Eastland  v.  Burchell 
Eaton  v.  Hill 
Ebersoll  v.  King 
Eberts  v.  Eberts 
Eberwine  v.  State 
Eckford  v.  DeKay 

v.  Knox 
Eilgar  v.  Castello 
Edgarton  v.  Wolf 
Edgerly  v.  Edgerly 

v.  Shaw 
Edgerton  v.  Jones 
Edmonds's  Appeal 
Edmondson  v.  Machell 
Edrington  v.  Harper 
Edwards,  Ex  parte 

In  re 


SECTION 

SECTION 

165 

Edwards  v.  Carter 

399 

145 

v.  Crame 

263 

162 

v.  Davenport 

380 

292 

v.  Davis 

241,  265 

26,  27 

v.  Freeman 

272 

279 

v.  Jones 

189 

162 

v.  Schoenetnan 

91 

299 

v.  State 

50 

169 

v.  Stevens 

169 

209 

v.  Taliafero 

351 

470 

v.  Woods 

144  a,  158 

72 

Edwards'  Appeal 

281 

388 

Eichelberger  v.  Gross 

367 

409,  446 

Kichelberger's  Appeal 

342 

13 

Eidam  v.  Finnegan 

453 

449 

Eiler  v.  Crull 

66 

217,  218 

Eitle  v.  Walter 

241 

150  a 

Ela  v.  Brand 

237,  238,  273 

192 

v.  Ela 

388 

199 

Elderston,  Re 

247 

164 

Eldred  v.  Drake 

187 

18 

Eldridge  v.  Lippincott 

298 

399 

v.  Treble 

120  a 

158 

Elaine's  Case 

318 

353 

Elijah  v.  Taylor 

154 

217 

Eliot  v.  Eliot 

20 

172 

Eliott  v.  Gower 

136 

269 

v.  Horn 

416 

301 

Ellington  v.  Ellington 

261 

301,311 

Elliot  v.  Collier 

415 

357 

Elliott  v.  Bently 

162 

188 

v.  Teal 

202 

Ellis  v.  Alford 

447 

v.  Cary 

274 

v.  Ellis 

414 

261,  262 

v.  Scott 

372 

405 

v.  Woods 

124 

71 

Ellison,  Matter  of, 

:363 

325 

v.  Ellison 

189 

277 

Ellsworth  v.  Hinds 

90,92 

329 

v.  Hopkins 

192 

414 

Elrod  v.  Lancaster 

386 

414 

v.  Myers 

413 

116 

Elton  v.  Shephard 

106 

68 

El  well  v.  Martin 

424 

424 

Elzey  v.  Elzey 

18 

79 

Emerson  r.  Spicer 

290 

388 

Emer^'  v.  Gowing 

261 

58 

v.  Kempton 

252  a 

385 

v.  Neighbor 

68 

232 

v.  Steckel 

472 

259 

v.  Vroman 

361 

446 

v.  Ware 

93,94 

190 

Emniert  v.  Richardson 

167 

435 

Emmet  v.  Norton 

62,  68 

155 

Emmons  v.  Murray 

409.  439 

44 

Enders  v.  Beck 

75 

261 

England  v.  Downes 

1181 

89 

v.  Garner 

407 

301 

Englehardt  v.  Yung 

239 

448 

English  v.  Foxall 

173 

xlil 


TABLE  OF   CASES. 


SECTION 

English  v.  State  484 

Ensign,  Re  221 

Epperson  v.  Nugent  412,  413 

Errat  v.  Barlow  240 

Eslinger  t\  Eslinger  7 

Esp3r  w.  Lake  326,  389 

Essery  v.  Cowland  183  a 

Essex  v.  Atkins  138 

v.  Essex  20 

Estill  v.  Rogers  26 

Etherington  v.  Parrott  63,  66,  69 

Eureka  Co.  v.  Edwards  446 

Evans  v.  Chester  57 

v.  Covington  187 

v.  Evans  46,  2206 

v.  Knorr  124 

v.  Nealis  117 

v.  Walton  261 

Evansieh  v.  Gulf  R.  258 

Evarts  v.  Nason  374,  376 

Evelyn  p.  Templar  186 

Everett  v.  Sherfey  252a,  260 

Everitt  v.  Everitt  183 

Everson  v.  Carpenter  404,  437 

Evertson  v.  Evertson  384 

Ewers  v.  Hutton  68 

Ewing  v.  Helm  120  a 

Exchange  Bank  v.  Watson  174 

Eyre  v.  Shaftesbury,  Countess  of    313, 

333, 390 

Eystra  v.  Capelle  153 


Fairland  p.  Percy 
Falmouth  Bridge  Co.  » 
Fanning  p.  Chadwick 
Fant  u.  McGowan 
Farber  p.  Farber 
Fargo  17.  Goodspeed 
Parish  p.  Cook 

Farley  p.  Farley 

Farmer  p.  McDonald 
Farmers'  Bank  p.  Brooke 

v.  Jenkins 

p.  Long 
Farmington  p.  Jones 
Farnham  p.  Pierce 
Farnsworth  p.  Richardson 
Farr  p.  Sherman 
Farrance  v.  Viley 
Farrell  p.  Farrell 

P.   I. cdwcll 
)•.  Patterson 

Farrington  u   Wilson 
Karwell  v  Steen 
Faucetl  p.  i  Jurrier 
Faulkner  i    I  >avia 
Favorite  v  Hooher 
Fay  v.  Hurd 


Tibbetts 


204 
95 
382 
319 
218 
137 
447 
221 
255 
187 
155 
188 
237 
237,  251,  256 
251 
150 
338 
267  a 
53 
114,  120  a 
803 

354,  376 
160 
856 
377 

816,  319 


SECTION 

Fay  v.  Taylor 

319 

Fearon  v.  Aylesford 

216 

Fears  v.  Brooks 

124,  136 

Feeley,  Re 

304 

Felker  p.  Cbubb 

186,  187 

Feller  p.  Alden 

154 

Fellows  p.  Tann 

123 

Felton  v.  Long 

382,  388 

Fendall  p.  Goldsmied 

39 

Fen  ton  v.  Lord 

150 

Feran  v.  Rudolphsen 

166 

Ferguson  v.  Bell 

405,  439 

v.  Brooks 

75 

v.  Neilson 

461  a 

v.  Reed 

58 

Fernslee  v.  Moyer 

335 

Fetrow  v.  Wiseman 

404 

Fettiplace  v.  Gorges 

131 

Fewell  v.  Collins 

77 

Fidler  v.  Higgins 

357 

Field  v.  Goldsby 

315 

v.  Herrick 

350 

v.  Lucas 

343 

v.  Moore 

399 

v.  Scbieffelin 

350 

v.  Sowle 

134 

v.  Torrey 

382 

Fielder  v.  Hanyer 

200 

Fields  v.  Law 

298 

Filmer  v.  Lynn 

63 

Finch  t;.  Finch 

175 

Finley  v.  Jowle 

449 

Finn  p.  Finn 

55 

Finnell  p.  O'Neal 

354 

Finney  p.  State 

306 

Firebrace  v.  Firebrace 

218 

Firth  t;.  Denny 

205,  206 

Fish  v.  Miller 

389 

Fisher  v.  Fisher 

269 

p.  Mowbray 

404 

v.  Payne 

96 

p.  Williams 

189 

Fisk  v.  Lincoln 

337 

Fitch,  Re 

329 

v.  Ayer 

124 

v.  Peckham 

269 

v.  Ratbbun 

119 

Fitler  v.  Fitler 

237 

Pitts  p.  Hall 

424 

Fitzgerald  p.  Brennan 

53 

p.  Chapman 

221 

Fitzgihbon  v.  Blake 

361 

Fitzhue  /'.  Dennington 

391 

Pit/.patrick  v.  Beal 

361 

;■.  Fitzpatrick 

21,50 

Fizette  v.  P'izette 

119 

Flanagan  p.  Flanagan 

92 

Planders  v.  Abbe}' 

146 

Flanigin  p.  Hamilton 

157 

Fleel  17.  Perrins 

83,  200 

Fleitas  v.  Richardson 

7 

TABLE   OF   CASES. 


xliii 


Fleming  v.  Shenandoah 
Flenner  v.  Flenner 
Flesh  v.  Lindsay 
Fletcher  v.  Ashley 

v.  Fletcher 

v.  People 

v.  Walker 
Flexnorr.  Dickerson 
Flinn,  Re 
Floyd  v.  Calvert 

v.  Johnston 
Fogler  v.  Buck 
Foley  v.  Mutual  Life  Co. 
Folger  v    Heidel 
Follit  v.  Koetzow 
Fonda  v.  Van  Home 
Foot  v.  Card 

v.  Graham 
Forbes  v.  More 
Force  v.  Gregory 
Ford  v.  Miller 

v.  Monroe 

v.  Phillips 

v.  Stuart 
Foreman  v.  Foreman 

v.  Marsh 

v.  Murray 
Forman  v.  Marsh 
Forsyth  v.  Hastings 
Fort  v.  Allen 
Fortier,  In  re 
Foster  v.  Alston 

v.  Bisland 

v.  Essex  Bank 

v.  Heir 

v.  Mott 

v.  Waterman 

v.  Wilcox 
Foteaux  v.  Lepage 
Fountain  /•.  Anderson 
Fowler  v.  Chichester 

v.  Colt 

v.  Frisbie 

v.  Kell 

v.  Lewis 

v.  Rice 

v.  Seaman 

v   Shearer 
Fowlker  v.  Baker 
Fox,  E.r  parte 

v.  Burke 

v.  Davis 

v.  Doherty 

v.  Hawkes 

v.  Jones 

v.  Kerper 

v.  Minor 
Frampton  v.  Frampton 
Francis  v.  Felmet 

v.  Wilkinson 
Francklyn  v.  Sprague 


SECTION 

SECTION 

162 

Frank  v.  Anderson 

169 

179 

Frankford  v.  New  Vineyard 

207  a 

75,  89 

Franklin  v.  Franklin 

38 

181 

v.  Mooney 

420 

345,  353 

v.  New  Orleans,  &c.  R. 

259 

244 

v.  S.  E.  Railroad 

262 

362 

Franklin  Bank  v.  Taylor 

163 

407 

Franklin  Savings  Bank  v.  Miller        'J4 

343, 346 

Franks  v.  Martin 

178,  180 

26 

Frasher  v.  State 

12 

385 

Fratini  i-.  Caslini 

41 

385 

Frazer  v.  Clifford 

114 

290,  389 

v.  Zylies 

361 

339,  388 

Frazier  v.  Massey 

402 

279 

v.  Rowen 

443 

270,  285,  405 

v.  Steenrod 

361 

41 

Frecking  v.  Rolland 

167 

408 

Frederick  v.  Coxwell 

93 

7 

v.  Morse 

367 

427 

Freeman  v.  Boland 

424 

337 

v.  Bridger 

412,  413 

262 

v.  Flood 

129 

435 

v.  Freeman 

274 

173,  174 

v.  Hartman 

181 

448 

v.  Holmes 

61 

357 

v.  Robins 

275 

338 

Freestone  v.  Butcher 

62 

448 

Freiberg  v.  Branigan 

168 

435,  443 

French  v.  Currier 

353,  354 

92 

v.  Davidson 

339 

295 

v.  Motley 

188 

248,  333 

v.  Thompson 

345 

377 

Freto  v.  Brown 

237,  273 

263 

Freund  v.  Washburn 

329 

124 

Fiick  v.  St.  Louis  R. 

258 

305 

Fridge  v.  State 

388,  404 

232 

Friend  v.  Lamb 

143 

95 

v.  Thompson 

41,  237 

338,  376 

Friermuth  v.  Friermuth 

269 

345 

Friesner  v.  Symonds 

304 

75 

Frost  v.  Winston 

354 

272 

Frostburg  Association  v.  Hamill      138 

77 

Fruhauf  v,  Bendheim 

189 

198 

Fry  v.  Derstler 

77 

343 

v.  Fry 

123 

119,  120,  155 

v.  Leslie 

423 

151 

Fulgham  v.  State 

44 

95 

Fullam  v.  Rose 

86 

241 

Fuller  v.  Coe 

348 

188 

v.  Fuller 

21 

225 

v.  McHenry 

169 

217,218 

t'.  Naugatuck  R.  R.  Co. 

78 

210 

v.  Wing 

348,  370 

105,  189 

Fullerton  v.  Jackson 

290 

155 

Fulton  v.  Fulton 

46 

349 

v.  Smith 

272 

338,  343 

Fuqua  v.  Hunt 

343 

216 

Furguson  v.  Bartlett 

446 

443 

v.  Bobo 

426 

270 

Furlong  v.  Hyson 

64 

324 

Furman  v.  Van  Sise 

261 

xliv 


TABLE   OF   CASES. 


Furrilio  v.  Crowther 
Fussell  v.  Dowding 
Fynn,  In  re 

G. 

G.  v.  G. 

Gabriel  v.  Bowman 
Gacox  v.  Gacox 
Gaffney  v.  Hayden 
Gage  v.  Dauchy 

v.  Reed 
Gager  v.  Henry 
Gahn  v.  Derby 
Gailey  v.  Crane 
Gaines  ».  Mining  Co. 

v.  Poor 

v.  Spaun 
Gainor  i*.  Gainor 
Gaither  v.  Williams 
Galbraith  v.  Black 
Gale  v.  Gale 

v.  Hayes 

v.  Parrott 

v.  Wells 

v.  Worman 
Gall  v.  Fryberger 

v.  Gall 
Gait  v.  Smith 
Galusha  v.  Galusha 
Gamber  v.  Gamber 
Gan  v.  Marshall 
Gandet  v.  Gandet 
Gannard  v.  Eslava 
Gannaway  v.  Tapley 
Gans  v.  Williams 
Gard  v.  Neff 
Gardner  v.  Baker 

,-.  I  >:mlner 

v.  He)rer 

v.  Hooper 

v.  Schooley 
Garin  v.  Burton 
Garlick  v.  Strong 
Garner  v.  Board 

v.  Gordon 
Garrigus  p.  Ellis 
Garthshore  v.  (lialie 
Garver  v.  Miller 
l  .;u - v i 1 1  v.  Williams 
Gary  v.  '  iannon 

v.  .1    I 
( raston  ' .  Frankom 
( raters  v.  Maddeley 
Gatee  v.  Bingham 

v.  Davenport 
Qaull  -    Baffin 
Gazynski  v.  Colbnrn 
Gh        Gee 
i .  Bcotl 
.11       1  i;i/ier 


SECTION 

SECTIOS 

279 

General  Hospital  v.  Fairbanks 

344 

221 

Genereux  v.  Sibley 

413 

246 

Genet  v.  Tallmadge 

342 

Genner  v.  Walker 

411,412 

George,  In  re 

272 

v.  High 

450 

20 

v.  Ransom 

155 

144  a 

v.  Spencer 

189 

270 

v.  Thomas 

440 

443 

v.  Van  Home 

261 

154 

Georgia  R.  R.  Co.  v.  Wynn 

78 

57,75 

Gera  v.  Cianta 

277 

365 

Getts,  Petition  of 

373 

38 

Geyer  v.  Branch  Bank 

124 

436 

Gholston  v.  Gholston 

44 

225 

Gibbs  v.  Harding 

218 

124 

Gibbs  v.  Merrill 

426 

299 

Gibson  v.  Commonwealth 

53 

181 

v.  Gibson 

77 

183  a 

v.  Walker 

138 

270 

v.  Way 

110 

174 

Gifford  v.  Kollock 

252  a 

272 

Gilbert  v.  Guptil                  353, 

372,  382 

252,  267  a 

v.  McEachen 

338 

349,  389 

v.  Schwenck 

321,  322 

259 

v.  Wetherell 

272 

158 

Gilchrist,  Ex  parte 

166 

21 

v.  Cator 

108 

137 

Gilker  v.  Brown 

393 

217,  218 

Gill  v.  Read 

237 

120  a 

v.  Shelley 

281 

401 

v.  Woods 

155,  198 

318 

Gillespie  v.  Bailey 

437,  439 

189 

v.  Beecher 

114 

384 

v.  Burlinson 

124 

115,  116 

v.  Worford 

94 

345 

Gillet  v.  Camp 

273 

187 

v.  Stanley 

405 

137 

Gillett  v.  Gillett 

18 

281 

v.  Knowles 

82 

114 

Gilliat  v.  Gilliat 

287,  299 

269,  270 

Gilman  v.  Andrus 

61,64 

4H4 

Gilmore  v.  Rodgers 

365 

188 

Gilson  v.  Spear 

125 

443 

v.  Zimmerman 

193 

248,  322 

Ginn  v.  Ginn 

252  a. 

381 

Ginochia  v.  Porcella 

208 

205 

Girvin  v.  Hickman 

376 

192 

(iishwiler  v.  Dodez 

248 

389 

Given  v.  Marr 

221 

353 

Gladding  v.  Follett 

239 

267  a 

Glascott  v.  Warner 

303 

134 

Glass  v.  Glass 

21,  372 

83 

v.  Warwick 

143 

329 

Glanry  o.  llestonville,  &c.  R. 

259 

443 

( Haze  v.  Blake 

81,  162 

120  a 

Gleason  v.  Kmerson 

221 

7'.) 

v.  ( lleason 

38 

128 

Glen,  Ex  parte 
( }lenn  v.  Hill 

18 

53 

61 

138 

Glidden  v.  Taylor 

154 

TABLE   OF   CASES. 


xlv 


Gloucester  v.  Page 
Glover,  Ex  parte 

v.  Alcott 

v.  Glover 

v.  Ott 

v.  Proprietors  of  Drury  Lane 


SECTION 

305 
246 
119 

348 

411 

80, 

81 

238 

64,  164 

188 

186 

174 

50 

343 

305 

124, 127 

734,  442 

251 

250,  251 

95 

231 

363,  448 

231 


Goddard  v.  Wagner 

Godfrey  v.  Brooks 
Goff  v.  Rogers 
Golding  v.  Golding 
Goldsmith  v.  Russell 
Goldstein  v.  People 
Goleman  v.  Turner 
Good  v.  Good 
v.  Harris 
v.  Harrison 
Goodchild  v.  Foster 
Goodenough,  la  re 

v.  Fellows 
Goodman  v.  Goodman 

v.  Winter 

Goodman's  Trusts 

Goodnow  v.  Empire  Lumber  Co.      435 

v.  Hill  146 

Goodrich  v.  Bryant  217 

v.  Goodrich  249 

v.  Tracy  72 

Goodriglit  v.  Straphan  90,  91 

Goodrum  v.  State  53 

Goodsell  v.  Myers  404,  435,  445 

Goodson  v.  Goodson  386 

Goodwin  v.  Kelly  72,  1:27 

v.  Moore  449 

v.  Thompson  21,  260 

Goodyear  v.  Rumbaugh  120  a 

Gordon  v.  Dix  265 

v.  Gilfoil  392 

v.  Gordon  281 

v.  Haywood  94 

w.Potter  241 

Gore  v.  Carl  150 

v.  Gibson  18 

v.  Knight  132 

Gorman  v.  State  44,  244 

v.  Wood  81,  118 

Gornall's  Case  306 

Goshen  v.  Richmond  19,  31 

Gosman  v.  Cruger  58,  146 

Goss  v.  Cahill  154 

v.  Froman  225 

v.  Stone  306 

Gotts  v.  Clark  241 

Gould  v.  Carlton  81 

v.  Hill  124 

Goulder  v.  Camm  105 

Goulding  v.  Davidson  58 

Grace  v.  Hale  409,  411 

Graham  v.  Bennett  226 

v.  Davidson  322 

v.  Dickinson  90,  92 


SECTION 

Graham  v.  Londonderry  208 

v.  Reynolds  2»U 

drain  v.  Shipman  190 

Grand  Rapids  11.  v.  Showers  260 
( irandstrand,  lie 

Grant  v.  P"ox  353 

v.  Green  44 

v.  Mitchell  225 

v.  Wliittaker  316 

v.  Willey  46 

Grantham  v.  Grantham  162 

Grantman  v.  Thrall  450 

Grapengather  v.  Fejervary  143 

Gravett  v.  Malone  388 

Gray  v.  Crockett  1")7 

v.  Crook  112 

v.  Dryden  89 

v.  Durland  201 

v.  Otis  72 

v.  Parke  316,  450 

v.  Thacker  57,  75 

Green,  Ex  parte  240 

v.  Campbell  247 

v.  Green  181,  446 

v.  Greenbank  424,  446 

v.  Hudson  R.  R.  Co.  78 

v.  Johnson  370 

v.  Rountree  353 

v.  State  12 

v.  Weever  211 

v.  Wilding  401 

Greenfield  Bank  v.  Crofts  266 

Greening  v.  Fox  354 

Greenly  v.  Daniels  366 

Greenman  v.  Greenman  187,  189 

Greenway  v.  Conroy  428 

Green  well  v.  Green  well  238 

Greenwood  v.  Greenwood  261 

Greer  v.  Greer  192 

Gregg  v.  Gregg  372 

Gregley  v.  Jackson  225 

Gregory  v.  Lee         409,  414  a,  441,  442 

v.  Orr  388 

v.  Winston  181 

Grey  v.  Earl  of  Stamford  227,  231 

Gridley  v.  Watson  187 

Griffin  v.  Banks  217 

v.  Reynolds  75 

v.  Sarsfield  304 

Griffis  v.  Younger  440,  442 

Griffith  v.  Bird  374 

v.  Griffith  112,  124 

v.  Parks  367 

v.  Schwenderman  405 

v.  Teetgen  261 

Grigsby  v.  Breckenridge  208 

Grimm  v.  Taylor  208 

Griner  v.  Butler  95 

Grinnell  v.  Wells  258,  261 

Grist  v.  Forehand  829 

Gronfier  v.  Puymirol 


xlvi 


TABLE   OF   CASES. 


SECTION 

SECTION 

Gross  v.  Reddy 

119 

Hall  v.  Gerrish 

435 

Grove  v.  Xevill 

425 

v.  Hall                    85 

235,  268,  339 

Grover  v.  Alcott 

162 

v.  Hardy 

93 

Grubb's  Appeal 

230 

v.  Hollander 

258,  260 

Grundy  v.  Hadfield 

277 

v.  Jones 

322,  439 

Grunhart  v.  Rosenstein 

237 

v.  Simmons 

439 

Grute  v.  Locroft 

88 

v.  Storer 

305 

Guernsey,  Ex  parte 

352,  361 

v.  Tay 

152 

Guertin  v.  Moniblear 

150 

v.  Weir 

61 

Guffin  v.  First  National  Bank 

270,  369 

Hallenbeck  v.  Berkshire 

R.  R.  Co.     78 

Guild  v.  Cranston 

450 

Ham  v.  Ham 

301 

Guishaber  v.  Hairman 

124 

Hamaker  v.  Hamaker 

19,  171 

Gulf  R.  v.  Donahoo 

89 

Hamer  v.  Cook 

363 

Gulick  v.  Grover 

72 

Hamill  v.  Augustine 

168 

Gunter  v.  Astor 

262 

Hamilton  v.  Bishop 

112,  123,  124 

v.  Williams 

150 

v.  Douglas 

168 

Gunther,  Re 

329 

v.  Hector 

218 

v.  State 

324 

v.  Lord  Mohun 

388 

Guptil  v.  Home 

73 

v.  Moore 

316 

Gurley  v.  Gurley 

205 

v.  Probate  Court 

307 

Guthrie  v.  Morris 

414 

Hamilton,  Duke  of,  v.  Hamilton     27, 

Guttman  v.  Scannell 

166 

191 

Guy  v.  Du  Uprey 

351 

Hamilton's  Appeal 

337 

Guynn  v.  McCauley 

255 

Hamley  v.  Gilbert 

238 

Gwaltney  o.  Canoa 

337 

Hamlin  v.  Atkinson 

388 

Gwin  v.  Vanzant 

317 

v.  Jones 

90.  92 

v.  Stevenson 

391 

Hammersley  v.  De  Biel 

175,  177,  179 

H. 

Hammond  v.  Bledsoe 

119 

H.  v.  P. 

20 

v .  Corbett 

254 

H.  v.  W. 

216 

v.  Renfrew 

120 

Haase  v.  Roerschild 

238 

Hamner  v.  Macon 

367 

Hackett  v.  Hackett 

211 

Hamnett's  Appeal 

385 

Haddock  v.  Planter's  Bank 

353 

Hampden,  Case  of, 

288 

Haesley  v.  Winona  R. 

428 

v.  Troy 

267  a 

Hafer  v.  Hafer 

183 

Hampstead  v.  Plaistow 

24 

Hager  v.  Hager 

270 

Hampton,  Case  of, 

348 

1  Liberty  v.  Powers 

263 

v.  State 

53 

Hagy  /•.  Avery 

343 

Hancock  v.  Merrick 

66,  237 

Harm  v.  Cooper 

261 

v.  Peaty 

18 

Haig  v.  Suiney 

106 

Hancocks  v.  Lablanche 

159 

Haight  v.  Hall 

127 

Hands  v.  Slaney 

394,  411 

v.  McVeagh 

194  a 

Handy  v.  Foley 

75 

Hailey  /-.  Boyd 

376 

Hanks  v.  Deal 

431 

Haine    .  Tarrant 

414 

Hanly  v.  Downing 

143 

Haines  o.  Corliss 

110 

Hannen  v.  Ewall 

350 

'-.  1  ►fltman 

450 

Hanrick  v.  Patrick 

7 

Hair  '•.  Hair 

37 

Hanson  v.  Millett 

116 

I laitt  v.  Williams 

270 

Hantz  v.  Sealey 

27 

Hale  v.  f  '1  misty 

150 

Harbman  v.  Kendall 

447 

v.  Hale 

::<;:', 

Hardenburgh  r.  Lakin 

94 

v.  Plummer 

188 

Hardie  v.  Grant 

66 

r    Slui'haii 

464 

Hardin  v.  Heltory 

318 

Haley  <    Bannister 

289 

Harding  i».  Harding 

119,  249 

-    Bond 

388 

v.  Lamed            347, 

350,  353,  360 

<■   Lay 

304 

Hardwick  v.  Paulet 

269 

Hall  v.  Butterfleld 

412,414a 

v.  Wells 

303 

i)  Carmichael 

1H1 

Hardy  o.  Hank 

352  a 

v.  '  lone 

:;ss 

r.  Walker 

402 

-    Creswell 

120 

V.  Waters 

404,  406 

•    Baton 

57 

Harford  v.  Morris 

23,  367 

TABLE   OF   CASES. 


xlvii 


SECTION 

SECTION 

Hargrave  v.  Hargrave 

225 

337 

Harwood  v.  Lowell 

78 

Harlainl,  Case  of, 

238 

Hasheagan  v.  Specker 

143 

In  re 

375 

Haskell  v.  Jewell 

335 

Harley  v.  Harley 

272 

lias  kit  v.  Elliott 

155 

Harmer  v.  Killing 

445 

Hassard  v.  Kowe 

351 

Harnden  v.  Gould 

166 

Hastie's  Trusts 

281 

Harner  v.  Dipple 

404 

Hastings  v.  Dollarhide 

400,  435 

Harney  v.  Owen 

443 

Haswell  v.  Hill 

118 

Harper  v.  Lemon 

241 

Hatch  v.  Gray 

187 

v.  Lufkin 

261 

v.  Hatch 

387, 388 

v.  Finkston 

77 

Hause  v.  Gilger 

120 

Harrall,  Re 

208 

Hausenstein  v.  Kull 

343 

Harrer  v.  Wallner 

96 

Hauser  v.  Saine 

273 

Harrington  v.  Banfield 

277 

Haussman  v.  Burnham 

192 

v.  Cole 

238 

Havens  v.  Patterson 

363 

v.  Giles 

81 

Haver's  Estate 

118,  120a 

Harris  v.  Berry 

349 

Hawbecker  v.  Hawbecker 

226 

v.  Butler 

261 

Hawkes  v.  Hubback 

105,  107 

v.  Carstarphen 

389 

Hawkins  v.  Craig 

82 

v.  Currier 

269 

v.  Hyde 

269 

v.  Dodge 

58 

v.  Jones 

268,  277 

v.  Harris 

248,  324 

347 

v.  Providence  R. 

81,82 

v.  Lee 

61 

v.  Watts 

238 

v.  Morris 

66 

Hawkins's  Appeal 

388 

v.  Mott 

133 

Hawksworth  v.  Hawksworth 

235 

v.  Smith 

273 

Haw  ley,  Re 

299 

v.  Wall 

433 

v.  Bradford 

95 

v.  Williams 

150 

Haws  v.  Clark 

361 

Harrison  v.  Adcock 

440 

Hawthorne  v.  Beckwith 

56 

v.  Bradley 

384 

Hayden  v.  Ivey 

126 

v.  Cage 

172 

v.  Stone 

374 

v  Fane 

411,  412 

413 

Hayes  v.  Parker 

426 

v.  Harrison 

270 

v.  Watts 

30 

v.  Trader 

57 

Haygood  v.  Harris 

128 

Harrod  v.  Harrod 

18 

v.  McKoon 

377 

Harshaw  c.  Merryman 

64 

Haymond  v.  Jones 

173 

Harshberger  v.  Alger 

136,  144 

218 

v.  Lee 

180 

Hart,  In  re 

299 

Haynes  v.  Bennett 

405,  440 

v.  Czapski 

329 

v.  Haynes 

270 

v.  Goldsmith 

144a 

v.  Nowlin 

41 

v.  Gray 

317 

(Adm'r)  v.  Waggoner 

237 

v.  Grigsby 

145 

Hays  v.  Henry 

205 

v.  Hart 

269 

v  Leonard 

124 

v.  Stribling 

389 

v.  McConnell 

273 

Harten  v.  Gibson 

281 

v.  Seward 

254,  269 

Hartfielfl  v.  Uoper 

258 

429 

Hayward  v.  Ellis 

374,  386 

Hartford  Co.  v.  Hamilton 

262 

Haywood  v.  Shreve 

158 

Hartley  v.  Hurle 

105 

Hazard,  In  re 

363 

v.  Tribber 

281 

Hizelbaker  v.  Goodfellow 

114,  154 

v.  Wharton 

433 

Head  v.  Briscoe 

76 

Hartness  v.  Thompson 

402 

v.  Halford 

186 

Harttman  v.  Tegart 

66 

r.  Head 

225 

Hartwell  v.  Rice 

272 

Headen  v.  Rosher 

131 

Harvard  College  v.  Head 

221 

Headman  v.  Rose 

39 

Harvey,  Re 

136n 

Heard,  Ex  parte 

329 

v.  Ashley 

399,  4< 

v.  Daniel 

348 

v.  Briggs 

402 

v.  Stamford 

56,  197 

v.  Hall 

394 

Hearst  v.  Sybert 

2o9 

v.  Harvey 

103,3 

Heath  v.  Mahoney 

425 

v.  Lane 

249 

v.  West 

438,  440 

v.  Norton 

64 

Heather,  Re 

332 

xlviii 


TABLE   OF    CASES. 


Heathey  v.  Thomas 
Heath m an  v.  Hall 
Hehblethwaite  v.  Hepworth 
Heburn  v.  Warner 
Heck  v.  Clippenger 
Hedger  v.  Tagg 
Heffer  v.  Heffer 
Heineman's  Appeal 
Heirn  v.  McCaughan 
Helps  v.  Clayton 
Hemmenway  v.  Towner 
Hemphill  v.  Lewis 
Hemstead  v.  Gas  Light  Co. 
Hendee  v.  Cleaveland 
Hendershot  v.  Henry 
Henderson  v.  Coover 

v.  Wendler 
Hendry  v.  Hurst 
Hennesy  v.  Stewart 
Henning  v.  Harrison 
Henry  v.  Henry 

v.  Penington 

v.  Root  426,  434, 

Henson  v.  Waltz 
Herbert  v.  Torball 
Herdman  v.  Pace 
Hermance,  Re 
Herndon  v.  Lancaster 
Herrick  v.  Musgrove 

v.  Pritcher 

v.  Wickham 
Herring  v.  Goodson 
Herschfeldt  v.  George 
Hervey  v.  Moseley 
Hesketh  v.  Growing 
Hester  v.  Hester 
Hetrick  v.  Hetrick 
Hewlett  v.  Ragsdale 
I  lew  son,  In  re 
Heyward  v.  Brooks 

v.  Cuthbert 
Hiatt  v.  Williams 
Hickman's  Appeal 
Hick-  v.  Beam 
Hierstand  v   Kuns 
Higgins  v.  McClure 

Snedicor 
Hightower  v.  Maul 
Hilbish  o.  Hilbieli 
Hileman  v.  Hileman 
Hill  v.  Anderson 

'■•  Bugg 

v.  <  'hambera  114, 

/     Childress 
<     I  lark 

rook 
v,  Bdmonds 

-     I  ilkin 

r.  Polcy 

/      I  tOi  •'! 

v  Goodrich 


SECTION 

SECTION 

137 

Hill  v.  Hill                     90,  249, 

332,  333 

124 

v.  Johnston 

384 

26,29 

v.  Lancaster 

389 

146 

v.  Mclntire 

383 

124 

v.  Nelms 

439 

261 

v.  Saunders 

89,  90 

24 

v.  Sew  aid 

72 

304 

v.  State 

53 

77 

v.  West 

95 

411 

Hillebrand  v.  Nibbelink 

276 

225 

Hillsborough  v.  Deering 

280 

373 

Hillyer  v.  Bennett 

446 

79 

Hinchliffe  v.  Koontz 

472 

386 

Hincks  v.  Allen 

178 

157 

Hindley  v.  Westmeath 

66,68 

369 

Hindman  v.  O'Connor 

325 

75 

Hinds,  Estate  of 

84 

379 

Hinds's  Lessee  v.  Longwood 

270 

252a 

Hinely  v.  Margaritz 

445 

98 

Hines  v.  Mullins                 280, 

308,  313 

179 

v.  State 

329 

384 

Hinney  v.  Phillips 

155 

441,  446 

Hinton  v.  Hudson 

69 

248,  250 

Hippee  v.  Pond 

345 

397 

Hitchens  v.  Eardley 

225 

94 

Hitner's  Appeal 

217 

306 

Hix  v.  Gosling 

143 

361 

Hoag  v.  Martin 

166,167 

94 

Hoare  v.  Harris 

343,  385 

252a 

Hobb  v.  Harlan 

388 

174 

Hobensack  v.  Hallman 

118 

303 

Hobson  v.  Fullerton 

261 

188 

Hocker  v.  Woods 

322,  377 

260 

Hodgen  i\  Hodgen 

109 

279 

Hodges,  In  re 

339 

41 

v.  Cobb 

154 

197 

v.  Hunt 

437 

275 

Hodgkins  v.  Rockport 

235 

208 

Hodgkinson  v.  Fletcher 

68 

269 

Hodgson  v.  Macy 

72 

239 

Hodson  v.  Davis 

143 

274 

Hoffman  v.  Ward 

37 

388 

Hoit  v.  Underbill 

437,  445 

449,  453 

Holbrook  v.  Brooks 

347 

393 

Holconib    v.     Meadville    Sa 

ings 

388 

Bank 

116 

388 

Holcombe  v.  Holcombe 

375 

343 

Holden  v.  Cope 

68 

269 

v.  Curry 

308 

188 

v.  Scanlin 

303 

407,  437 

Hole  v.  Robbins 

232 

155 

Holland,  Ex  parte 

159 

116,  120a 

v.  Moon 

94 

234 

?'.  State 

372 

399a 

Holley  v.  Chamberlain 

306 

•!■■',:> 

Holliday  v.  McMillan 

114 

HS 

Hollifleld  v.  Wilkinson 

189 

235 

Hollingsworth  v.  Swedenborj 

'  252,  254, 

82 

267  a,  268 

16 

Ilollingsworth's  Appeal 

300 

197 

1  Hollis  v.  Francois 

190 

TABLE   OF   CASES. 


xlix 


8ECTION 

holloway  v.  Headington 

189 

v.  Louisville  K. 

157 

v.  Millard 

186 

Holly  v.  Flournoy 

119 

Holmes  v.  Blogg 

408 

,  437,  441 

r.  Field 

300,311 

v.  Oilman 

195 

r.  Holmes  26,27,29, 

166 

198,  222 

v.  Penney 

189  a 

v.  Thorpe 

94 

v.  Waldron 

151 

Holmes's  Appeal 

357 

Holt  v.  Holt 

407 

v.  O'Brien 

64,  66 

v.  Sindrey 

285 

r.  Ward 

402 

Holtz  v.  Dick 

75 

Holtzman  v.  Castleman 

238 

Holyoke  v.  Clark 

370 

v.  Haskins 

334 

Homer  v.  Tliwing 

424 

Homoeopathic     Life    Ins 

Co. 

Marshall 

150 

Honnett  v.  Honnett 

23 

Hood  v.  Bridport 

351 

v.  Perry 

318,  326 

Hook  v.  Donaldson 

405 

Hooker  v.  Bancroft 

370 

Hooks  v.  Lee 

17,  177 

v.  Smith 

449 

Hooper  v.  Eyles 

347 

v.  Haskell 

77 

v.  Hooper 

311,388 

v.  Howell 

202 

Hoover  v.  Heim 

259,  262 

Hope  v.  Carnegie 

76 

v.  Hope 

216,  303 

Hopkins,  Ex  parte 

245, 

246,  250 

v.  Carey 

82 

v.  Myall 

138 

r.  Virgin 

429 

Hopper  v.  McWhorter 

82 

Hornbeck  v.  Building  Association    175 

Home  v.  Freeman 

261 

Horner  v.  Wheelwright 

134, 

243,  250 

Hornsby  v.  Lee 

89, 

157,  160 

Horsford,  Re 

303 

Hort  v.  Sorrell 

125,  231 

Horton  v.  Byles 

77,  141 

v.  Horton 

377 

v.  McCoy 

357 

Hosford,  Re 

303 

Hoskins  v.  Miller 

82,  150 

v.  Wilson 

348 

Hossfeldt  v.  Dill 

168 

Hosson's  Succession 

232 

Hoste  v.  Pratt 

238 

Hotchkiss  v.  Gretna 

464 

Hough  v.  Comstock 

265 

Houghton  v.  Houghton 

271 

Houliston  v.  Smyth         48,  66 

,  72,  111 

House  v.  House 
11  miser  v.  Reynolds 
Houston  v.  Cooper 
Hoverson  v.  Noker 
Hovey  v.  Harmon 
Howard  v.  Bryant 
v.  Digby 

v.  Hooker 

v.  Menifee 

v.  Simpkina 

v.  Stephens 

v.  Whetstone 

v.  Windham  Co. 
Howarth,  In  re 
Howe  v.  Chesley 

v.  Colby 

v.  Howe 

v.  Hyde 

v.  Lemon 

v.  Peabody 
Howe's  Estate 
Howell  v.  Cobb 

v.  Maine 

v.  Tyler 

v.  Williamson 
Hower  v.  Ulrich 
Howlett  v.  Haswell 
How  man  v.  Corrie 
Hoxie  v.  Lincoln 
Hoxsie  v.  Potter 
Hoyle  v.  Stowe 
Hoyt  v.  Casey 

v.  Hellen 

v.  Sprague 

v.  Swar 

v.  Underbill 

v.  White 

?-.  Wilkinson 
Hoyt's  Case 
Hubbard,  Re 

v.  Bugbee 

r.  Cummings 

v.  Lee 

v.  Ogden 
Hubbs  v.  Rath 
Huchting  v.  Engel 
Hu<lson  v.  Heliues 

v.  Hudson 

v.  Jones 

v.  Lutz 
Huey's  Appeal 
Huff  v.  Price 

v.  Walker 
Huffer's  Appeal 
Hugeley  v.  Lanier 
Huger  v.  Huger 
Hughes  v.  Coleman 

v.  Gallans 

v.  Hughes 

v.  Knowlton 

v.  McFie 


SECTION 

269 
439 

408 
263 

303,311,317 

155 

160,254,  2'.)],  292 

357 

112,  208,  432 

404 

169,317 

66,  112 

Savings  Bank  386 

356 

158 

401 

162 

81 

177 

368 

26,  31 

377 

83,  152 

281 

349 

263 

424 

154 

443 

248 

438 

413 

290 

329,  330,  349,  440 

404 

435 

162,  204 

404,  409 

299 

303 

59,  124 

441 

39 

274 

87 

423 

348 

274 

405 

273 

393 

72,  90,  131 

350 

375 

183 

357 

175 

425 

239 

281 

42fc 


d 


TABLE   OF   CASES. 


SECTION 

Hughes  v.  Peters  272 

v.  Ringstaff  373 

v.  Science  289 

v.  Stokes  127 

v.  Watson  440 

v.  Wells  140 

Hughes's  Appeal  350 

Huguenin  v.  Baseley  389 

Hulett  v.  Julon  398 

Hull  v.  Sullivan  155 

Hulme  v.  Tenant  105,  134 

Hultz  v.  Gihbes  66 

Hume  v.  Hord  25 

v.  Hume  380 

Humes  v.  Scruggs  119 

Humphery  v.  Richards  104,  132 

Humphrey  ;•.  Buisson  352 

v.  Douglass  395,  423 

v.  Spencer  151 

Humphreys  v.  Royce  57 

Humphries  v.  Davis  232 

v.  Harrison  99 

Hunt  t\  Adams  252 

v.  Booth  112,  124 

v.  Hayes  68 

v.  Johnson  189 

v.  Massey  433 

v.  Peake  433 

v.  State  367 

v.  Thompson  221 

v.  White  376 

v.  Winfield  78 

Hunt's  Appeal  26,176 

Hunter  v.  Atkins  388 

v.  Bryant  173, 176 

v.  Dashman  351 

r.  Duvall  148 

v.  Macrea  333 

Huntley  o.  Whitner  68,  148 

Iluntoon  v.  Hazleton  260 

v.  Thompson  413 

Huntsman  v.  Fish  308 

Hurdle  v.  Loath  353 

Ilurkle  v.  State  244 

Husband  v.  Husband  237 

Huson  v.  Green  367 

Hussej  -    Koundtree  337,413 

v.  Ryan  262 

Huston  <:.  Cantrill  1«^ 

r.  Cone  198 

Hutchcraft  v.  Slirout  367 

1  [utcheson  v.  Peck  41 

Hutching  v.  Cole  116,  162 

v.  Dresser  343 

v  Johnson  343 

v.  Kimmell  26,  29 

Hutchinson  u.  Hutchinson  337 

Iluth  v.  Carondolet  R.  435,  437 

If ut -  .m  v.  Towns<  ad  2 19 

Button  v.  Duey  191 

i    Harper  29 


Hutton  v.  Hutton 

v.  Williams 
Huyler  v.  Atwood 
Hyatt  v.  Adams 
Hyde  v.  Hyde 

v.  Johnson 

v.  Stone 

v.  Warren 
Hylton  v.  Hylton 
Hyman  r.  Cain 
Hynes,  Re 

v.  McDermott 
Hysong  v.  School  District 


SECTION 

217 

313,  372,  374 

148,  150 

77,78 

21 

433 

285 

95 

387,  388 

413 

290 

26,  29 

235 


I. 

Ihl  v.  R.  Street  R. 
Ilchester,  Earl  of,  Case 
Ilchester,  Ex  parte 
Illinois  Central  R.  v.  Slater 
Illinois  Land  Co.  v.  Bonner 


259 
333 
287 
428 
225,  402, 
405,  437 
350 
350 
350 


Indiana  v.  Kingsbury 
Indiana  R  v.  Brittingham 
Indianapolis  ?•.  Kingsbury 
Indianapolis  Chair  Co.  v.  Wilcox  407, 
409,  462 
Ingersoll  v.  Harrison 

v.  Mangam 
Ingham  v.  Brickerdike 
Inglefield  v.  Coglan 
Ingram  v.  Souton 


Inman  v.  Inman 
Insole,  In  re 
Insurance  Co.  v.  Bangs 

v.  Nelson 
Irvine  v.  Irvine 
Irwin  v.  Dearman 
Isaacs  v.  Taylor 
Ishan  v.  Gibbons 
Izard  v.  Izard 


Jack's  Appeal 
Jackson,  Re 

v.  Burchin 

v.  Carpenter 

v.  ( 'miilis 

v.  De  Waltz 

v.  Gilchrist 

v.  Ilankey 

v.  Hobhouse 

r.  Hubbard 

v.  Innes 

v.  Jackson     155,  225, 

v.  Kirby 

v.  McAliley 

v.  Met  lonnell 

r.  Peek 

v.  Sears 


i80 

451 

317  a 

105 

232 

425,  439 

222 

448 

193 

403,  435,  439 

261,  262 

305,  317,  321 

230 

218 


353 
356 
439,  440 
440 
225 
298 

94 
334 
110 
113 
209 
272,  277,  351 

75 
112,  125 

88 
270 
342 


TABLE   OF   CASES. 


8ECTI0N 

Jackson  v.  Suffern  89 

v.  Todd  439 

v.  Town  187 

v.  Vanderheyden  58,  95 

v.  Winne  23 

Jacksonville  R.  v.  Mitchell  82,  1G0 

Jacobs  v.  Amyatt  105 

r.  Heeler  155 

v.  Miller  192 

Jacobson  v.  Williams  160 

Jacox  v.  Jacox  320 

Jaffrey  v.  Fretain  402 

Jagers  v.  Jagers  390 

James  v.  Allen  472 

v.  James  42 

Jamison  v.  Crosby  311,  307 

Janes  v.  Click  horn  305 

v.  Methodist  Episcopal  Church 

132,  136,  138,  139 

Janes's  Estate  225,  226 

Jaques  v.  Sax  408 

Jarman  v.  Woolston  163 

Jarrett  v.  State  298,  306,  376 

Jassoy  v.  Delius  162,  1G5,  166 

Jaynes v  Javnes  41 

Jefford  v.  Ringgold  402 

Jeffreys  v.  Vanteswartsworth  334 

Jenison  v.  Graves  267  a,  270 

Jenkins  v.  Flinn  118,  165,  168 

v.  Jenkins  403 

v.  Kemis  174 

v.  Mitchell  272 

v.  Tucker  199 

v.  Walter  352 

Jenks  v.  Langdon  213 

Jenkyn  v.  Vaughan  186 

Jenne  v.  Marble  191 

Jenner  v.  Turner  32 

Jenness  v.  Alden  268 

v.  Jenness  421 

v.  Robinson  203 

Jenney  v.  Emerson  237,  252  a 

v.  Gray  89 

Jennings  v.  Davis  189 

v.  Jennings  186 

v.  Looke  347 

v.  Rundall  424 

Jervoise  v.  Silk  238 

Jeston  c.  Key  182 

Jewell  v.  Jewell  28 

Jewett,  Ex  parte  356 

v.  Jewett  42 

v.  Ree  348 

Jewsbury  v.  Newbold  63,  64 

Jodrell  v.  Jodrell  110,  160 

John  v.  Bradbury  324 

v.  Chandler  377 

v.  Emmert  233,  278,  282 

v.  Gill  188 

Johnson  v.  Avery  862 

v.  Ballard    "  265 


8ECTION 

Johnson  v.  Beattie  299 

v.  Hlair  342 

v.  ( 'arter  850 
v.  Gallagher         134,  135,  143,  158, 
163,  165 

v.  Gibson  267  «,  268 
v.  Johnson          36,  37,  84,  107,  108 

v.  Jouchert  157 

17.  Kirkwood  219 

17.  Lines  413 

17.  Lusk  193 

v.  McCullough  367 

17.  Metzger  316 

v.  Mutual  Life  Co.  446 

v.  Onsted  237 

v.  Payne  89 

17.  Pye  424 

17.  Rockwell  402 

v.  Runyon  120  a,  152 

v.  Silsbee  268 

v.  Snow  155 

w.  State  244,  398 

v.  Stone  266 

v.  Storie  437 

I?.  Terry  251 

17.  Vail  154 

Johnston  v.  Furnier  439 

v.  Johnston  190 

v.  Jones  94 

v.  Marks  412,  413 

v.  Sumner  64 

Johnston's  Case  322 

Johnstone  v.  Beattie  299 

v.  Coleman  338 

v.  Lumb  107 

Joliffe  v.  Higgins  343 

Jolly  v.  Rees  63 

Jones,  Ex  parte  53 

Be  186,  190,  278 

v.  Aetna  Ins.  Co.  112 

«7.  Beverly  382,  386 

r.  Billstein  363 

p.  Blanton  367 

v.  Brandt  118 

v.  Brewer  344,  350,  419 

».  Buckley  252 

v.  Butler  399,  437 

17.  Carter  90 

v.  Claghorn  232 

v.  Clifton  187,  190 

v.  Crosthwaite  143 

v.  Darnall  248 

v.  Fellows  372 

v.  Foxall  854 

v.  Glass  324 
p.  Graham  Transportation  Co.  402 

v.  Hollopeter  350 

v.  Jones  8,  407,  433 

v.  Parker  338 

v.  Patterson  89,  167 

17.  Perry  330 


lii 


TABLE   OF   CASES. 


SECTION 

BBCTTON 

Jones  r.  Phoenix  Bank 

435, 

439 

Kellog  v.  Adams 

270 

v.  Plumnier 

90,  92, 

172 

v.  Phillips 

65 

v.  Potter 

193 

v.  Robinson 

72 

v.  Reid 

102 

Kelly  v.  Davis 

241 

v.  Sharp 

448 

v.  Drew 

119,  162 

v.  Steele 

449 

v.  Kelly 

45,46 

v.  Stockett 

235,  238, 

313 

v.  McGrath 

181 

v.  Tevis 

260 

v.  Owen 

39 

?•.  Waite 

216 

v.  Small 

53 

v.  Ward 

313 

Kemp  t\  Cook 

407,  426 

v.  Woeher 

72 

v.  Downham 

68 

Jones's  Appeal 

174, 

322 

Kempe  v.  Pintard 

90,  92 

Jordan  v.  Clark 

221 

Kempson  v.  Ashall 

404 

v.  Donahue 

343 

Kenan  v.  Hall 

354 

v.  Jones 

93 

Kendall  v.  Kendall 

238 

Joyce  v.  MeAvoy 

217 

v.  Lawrence 

405 

Judd  v.  Ballard 

430 

v.  Miller 

347 

Judge  of  Probate  v.  Cook 

77 

Kendrick  v.  Wheeler 

361 

v.  Hinds 

303 

v.  Wilkinson 

367 

Judkins  v.  Walker 

443 

Kennard  v.  Adams 

348 

Judson  v.  Blanchard 

450 

v.  Burton 

262 

Junction  Railroad  Co.  v. 

Harris 

89 

Kennedy  v.  Baker 

441 

Justices  v.  Willis 

376 

v.  Doyle 
v.  Gaines 

407 
361 

K. 

v.  Shea 

261 

v.  Ten  Broeck 

94 

Kalm  v.  Israelson 

306 

316 

Kenney  v.  Good 

120  « 

Kain  v.  Larkin 

270 

v.  Cdall 

390 

Kane,  Matter  of 

238,  304 

305 

Kenningham  v.  M'Laughlin 

255 

Kantrowitz  v.  Pranther 

143 

Kenniston  v.  Leighton 

361 

Karney  v.  Vale 

338 

Kenrick  v.  Wood 

110 

Karr  v.  Karr 

353 

Kensington  r.  Dollond 

105 

v.  Parks 

258 

Kent  v.  Dunham 

272 

Kauffelt  v.  Moderwell 

252  a 

?*.  Rand 

59 

Kaufman  v.  Whitney 

187 

188 

v.  State 

30 

Kavanaugh  v.  Barber 

151 

Kenton   Ins.  Co.  v.  McClellan 

148 

v.  Janesville 

77, 

Ken  worthy  v.  Sawyer 

146 

Kay  v.  Crook 

178 

.  180 

Kenyon  v.  Farris 

61 

r.  Wl  lit  taker 

90,91 

.    v.  Saunders 

114,  196 

Kay's  Case 

238 

Keogh  v.  Cathcart 

134 

Kaye,  In  re 

300 

Kernoodler  v.  Caldwell 

241 

v   Crawford 

270 

Kerr  r.  Bell 

446 

Keagy  v.  Trout 

114 

i\  Forgue 

429 

Keane  v.  Boycott 

2G0,  401 

,402 

Kershaw  v.  Kershaw 

277 

Kearney  v.  Demi 

225 

Kerwin  v.  Wright 

267  a 

Keating  v.  Condon 

210 

Kesner  v.  Trigg 

190 

Kc  iton  v.  Davis 

241 

Kettletus  v.  Gardner          306 

316,  339 

Keble,  Ex  parte 

240 

Kevan  v.  Crawford 

174 

Kee  v.  Vasser 

125 

v.  Waller 

299,  322 

Keech  v.  Keech 

38 

Keyes  v.  Keyes 

23 

Kceler  v.  Dawson 

277 

Keyser  r.  Hitz 

149 

v.  I'assett 

255 

Kibbie  v.  Williams 

89 

V.  <  iuicr 

318 

Kidd  c.  Guibar 

372 

Kclir  v.  Smith 

187 

v.  Montague 

114 

Keister  v.  Howe 

86 

Kidwell  v.  Kirkpatrick 

119 

Keith  v.  Miles 

374 

v.  State 

313 

Kekewicli  v.  Manning 

189 

Killiurn  v.  Fisk 

308 

Kelchnor  p.  Forney 

388 

Kilgore  V.  Jordan 

426 

Keller  v.  Ma }  er 

154 

r.  Rich 

412,  414 

v.  Phillips 

63 

Kilkrease  v.  Shelby 

419 

Kt-llcy  v.  Ma\  berry 

77 

Killick,  Ex  parte 

105 

TABLE    OF   CASES. 


111! 


8BCTION 

Kimball  v.  Fiske  311,  361 

v.  Keyes  68,  69,  237,  353 

v.  Perkins  374 

Kimrael  v.  Kimmel  310 


Kine  v.  Harbour 

408 

King  v.  Hell 

303,  308, 

324 

v.  Cotton 

357 

v.  Davis 

277, 

281 

v.  Fox  well 

37 

v.  Goodwill 

207 

v.  Gottsclialk 

118 

v.  Hodnett 

278 

v.  Hughes 

315, 

372 

v.  Little 

89 

v.  Luffee 

225 

v.  Rea 

150 

v.  Rotherfield  Greys 

420 

v.  Seals 

345 

v.  Thompson 

77, 

164 

Kingsbury  v.  Buckner 

453 

v.  Powers            343, 

344,  361a, 

372 

Kingsley  v.  Broward 

281 

Kingsman  v.  Kingsman 

97 

r.  Perkins 

406 

Kinkhead,  A'e 

169 

Kinnard  v.  Daniel 

177 

180 

Kinnen  v.  Maxwell 

408 

446 

Kinney  v.  Laughenour 

261 

v.  Sliowdy 

402 

Kinsey  v.  State 

238 

Kintzinger's  Estate 

221 

Kirby  v.  Taylor 

388 

v.  Turner 

322 

Kirk  v.  Paulin 

105 

Kirkman.  Ex  parte 

363 

Kirkpatrick  v.  Clark 

120 

138 

v.  Lock  hart 

200 

Kirksey  v.  Friend 

114 

Kirwin  v.  VVeippert 

130 

Kitchell  v.  Mudgett 

58 

Kitchen  v.  Bedford 

189 

v.  Lee 

408,  409 

416 

Kittridge  v.  Betton 

388 

Klaus  v.  State 

450 

Klein  v.  Jewett 

78 

Kleinert  v.  Beall 

446 

v.  Ehlers 

225 

Kline  v.  Beebe 

285 

437 

v.  Central  Pacific  R.  R.  Co.       428 

v.  Kline  181 

v.  L'Amoreaux  413 

Kline's  Estate  181 

Klingman  v.  Holmes  262 

Klopper  v.  Bromme  262 

Knaggs  v.  Green  446 

Knapp  v.  Knapp  218 

v.  Smith  120a,  148,  153 

Knickerbocker  v.  Knickerbocker      361 

Knight  v.  Glasscock  189 

v.  Knight  44,  107,  108 

v.  Wilcox  261 


SECTION 

Knott  v.  Cotter                   254, 

305, 

333 

Knotts  v.  Stearns 

448 

Knowles  v.  Hull 

168 

v.  Knowles 

130", 

L38 

v.  Toone 

145 

Knowlton  v.  Bradley          350 

353, 

376 

Knox  v.  Bushell 

01 

v.  Flack 

406 

v.  Jordan 

143 

v.  Pickett 

128 

Knye  v.  Moore 

279, 

281 

Kohn  v.  Collison 

114 

v.  Russell 

145 

Kolls  );.  De  Leyer 

150 

Koltenback  v.  Cracraft 

133 

Konigmacher's  Appeal 

353, 

356 

Koontz  v.  Knabb 

143 

Kopke  v.  People 

21 

Kouskop  v.  Sliontz              166 

167, 

108 

Kozine  v.  Home 

305 

Kraemer  v.  Kraemer 

76 

Kraft  v.  Wickey 

326 

329 

Kraker  v.  Byrum 

337 

413 

Kramer  ?•.  Mugele 

306 

Kreig  v.  Wells 

429 

Kreis  v.  Wells 

259 

Krigger  v.  Day 

222 

Kroessin  v.  Keller 

41 

Krossin  v.  Keller 

41 

Krugg  v.  Davis 

277 

Krumm  v.  Beach 

76 

Kulin  v.  Stansville 

155 

lvuothe  v.  Kaiser 

350 

Kurtz  v.  Hibner 

289 

270 

Kutcher  v.  Williams 

168 

Kyler  o.  Barnett 

353 

354 

L. 

Lacey,  Ex  parte 

348 

v.  Williams 

303 

Lacy  v.  Getman 

473 

v.  Pixler 

426 

Ladd  v.  Hildebrant 

94 

v.  Lynn 

61 

Lagger  v.  Mutual  Loan  Co. 

238 

Lahr's  Appeal 

188 

Laing  v.  Cunningham 

162 

Lake  v.  Lake 

7 

v.  McDavitt 

303 

Lally  v.  Fitz  Henry 

333 

Lamar  v.  Micou          290,  303, 

314, 

329, 

348 

,  353 

Lamb  v .  Lamb 

181 

v.  Milnes 

10!> 

Lamb's  Appeal 

354 

Lam  be  v.  Eames 

281 

Lamphier  v.  State 

51,: 

Lamphir  r.  Creed 

S3 

Lampman  ?>.  Hammond 

201 

Landis  v.  Eppstein 

324 

liv 


TABLE   OF   CASES. 


SECTION 

Landmesser's  Appeal 

352 

Lane  v.  Duchac 

40 

v.  Ironmonger          63,  64 

100,  108 

v.  Lane 

221 

v.  Me  Keen 

94,  174 

v.  Taylor 

348,  351 

Laner  v.  Bishop 

169 

Lang  v.  Pettus 

304 

Langdon  v.  Clayson 

441 

Langford  v.  Fray 

404 

Langham  v.  Nenny 

83 

v.  State 

200 

Lanier  v.  GrifBn 

388 

Lannoy  v.  Duchess  of  Athol 

52,  239 

v.  Duke  of  Athol 

183  a 

Lansier  v.  Koss 

125 

Lant's  Appeal 

180 

Lantz  v.  Frey 

273 

Lapsley  v.  Grierson 

227,  228 

Lapworth  v.  Leach 

237 

Larimer  i>.  Kelley 

162,  294 

Larkin  v.  Hecksher 

458,  462 

Larsen  r.  Johnson 

172 

Larson  v.  Cliase 

199,211 

Lashbrook  v.  Batten 

263 

Lassence  v.  Tierney 

175 

Latham  v.  Latham 

220  b 

r.  Myers 

337 

Laton  v.  Balcom 

91 

Latouehe  v.  Latouclie 

134 

Latts  ?\  Brooks 

252 

Lauderdale  v.  Peerage 

29 

Laughlin  v.  Eaton 

77 

Lavender  v.  Biackstone 

188 

La  vie  v.  Phillips 

163 

Law  v.  Wilkin 

211 

Law's  Estate 

352 

Lawes  v.  Lumpkin 

88 

Law  ford  v.  Davies 

30 

Lawrence  r».  Brown 

68 

v.  Lawrence 

40 

v.  M'Anter 

406 

i .  Spence 

260 

Lawson  v.  Lovejoy 

435 

v.  Shotwell 

221 

\.:w\  son'a  Aj)peal 

273 

Lawyer  v.  Fritcher 

260,  261 

Leach  v.  Duvall 

181 

v.  Noyea 

94 

v.  Prebster 

210 

Learoyd  v.  Brook 

457 

Learel  v.  Bettia 

805,  818 

l,e;i\  itt  /-.  Leavitt                  2 

3,  24,  187 

Leaycrafl  v.  rledden 

186 

Lebanon  v.  ^Jriflin 

265 

l.i-  Blanc's  Succession 

805 

Lecone  v.  sin-ires 

287 

Ledlie  i    Vroqman 

143 

Lee  v.  Brown 

889 

V.  Il'idges 

261 

v.  Ice 

308,  317 

SECTION 

Lee  v.  Lanahan 

58,  1 14 

Lee's  Appeal 

301 

Leete  v.  State  Bank 

114 

Lefever  v.  Lefever 

316,  319 

Lelevre  v.  Laraway 

348 

Let'evres  v.  Murdock 

222 

Lefils  v.  Sugg 

411 

Legard  v.  Johnson 

216 

Legate  v.  Legalje 

251 

Legeyt  v.  O'Brien 

18 

Legg  v.  Goldwire 

82,  182 

v.  Legg 

221 

Le  Gierse  v.  Moore 

121 

Lehman  v.  Brooklyn 

429 

Leidig  v.  Coover's  Ex'rs 

269 

Leigh  v.  Byron 

281 

Leinbach  v.  Templin 

162 

Leitensdorfer  v.  Hempstead 

440 

Leland  v.  Whittaker 

120 

Lemly  v.  Atwood 

384 

Lempriere  v.  Lange 

425 

Lenderman  v.  Talley 

83 

Lennox  v.  Barnum 

348 

v.  Duffin 

158a 

v.  Eldred 

59 

Leonard  v.  Leonard 

308 

v.  Putnam 

329 

Leslie  v.  Fitzpatrick 

403 

Lethem  v.  Hall 

306,  334 

Leuppie  v.  Osborn 

61 

Levering  v.  Heighe 

186 

v.  Levering 

399 

Levett  v.  Penrice 

64 

Lewin's  Trusts,  In  re 

141 

Lewis  v.  Alfred 

273,  388 

v.  Ames 

26 

r.  Babcock 

77 

v.  Edmands 

333 

v.  Eutzler 

277 

v.  Harris                        138 

145,  155 

v.  Johns 

154 

v.  Lewis 

23 

v.  Littlefield 

424 

v.  Mathews 

105 

Lewson  v.  Copeland 

352 

Lihby  v.  Chase 

150 

Lichtenberger  v.  Graham 

120,  155 

Liddlow  v.  Wilmot 

66,68 

Liirht's  Appeal 

354 

Linch  v.  llotan 

377 

Lincoln  v.  Alexander 

321,  330 

Liml  v.  Sullestadt 

254,  208 

Lindley  v.  Smith 

94 

Lindo  v.  Belisario 

12,  13 

Lindon  v.  Lindon 

23 

Lindsay  v.  Lindsay 

388 

Lindsell  *•.  Thacker 

105 

Lindsley  >•.  BornBtein 

168 

Line  v.  Blizzard 

155 

v.  Lawder 

388 

Lines  v.  Lines 

200 

TABLE   OF   CASES. 


lv 


Lingen  v.  Lingen  226,231 
Linton  v.  Walker  382 
Line  v.  Eieenlord  269 
Lippincott  v.  Mitchell  117,  152 
Lisliey  v.  Lisliey  155 
Lister  v.  Stubbs  488 
Litchfield  v.  Cadworth  89 
Little  v.  Duncan  404,  435 
Livermore  v.  Bemis  367 
Livernois,  Re  238 
Liverpool  Adelphi  Loan  Associa- 
tion v.  Fairhurst  76 
Livingston  v.  Hammond  273 
v.  Livingston  175,  190 
Livingstone,  In  re  412 
Livisey  v.  Hodge  339 
Lloyd,  In  re  278 
v.  Fulton  179,  187 
v.  Pughe  86 
Locke  t>.  Smith  413 
Lockliart  v.  Pliillips  384 
Lockman  v.  Probst  155 
Lockwood  v.  Fenton  305 
v.  Robbins  443,  461 
Lockyer  v.  Sinclair  26 
v.  Thomas  68 
Loeb  v.  McCullough  122 
Loehr  v.  Colburn  385 
Loftis's  Case  88 
Logan  v.  Fairlee  306 
v.  Gardner  96,  447 
v.  Goodall  176 
v.  Hall  155 
v.  Logan  41 
v.  Thrift  95 
v.  Wienholt  177 
Lomax  v.  Smyth  152 
Lombard  v.  Morse  194,  343 
London  Bank  of  Australia  v.  Lem- 

priere  135 

Londonderry  v.  Chester  29 

Long  v.  Hewitt  232 

u.  Kinney  73 

v.  McKay  120  a 

v.  Morrison  77,  78 

v.  Norcomb  338 

\i.  Rankin  59 

Longley  v.  Hall  375 

Longmeid  v.  Holliday  77 

v.  Newhall 

Longstreet  v.  Tilton  343 

Loomia  v.  Cline  431 

Lord  v.  Hough  305,  333 

v.  Locke  270 

v.  Parker  169 

v.  Poor  268 

Loring  v.  Alleine  377 

v.  Baron  307 

Losey  v.  Bond  404,  438 

Loud  v.  Loud  217 

Louisville  R.  v.  Alexander  16'J 


SECTION 

Louisville  R.  v.  Goodykoontz 

335 

v.  Shanks 

429 

Love  v.  Graham 

183 

v.  Logan 

352 

v.  Watkins 

150 

Lovelace  v.  Smith 

351 

Lovell  v.  Minot 

353 

v.  Newton  161,  162 

Lover  v.  Lover  26 

Lovett  v.  Salem,  &c.  R.  R.  Co.  129 

Low  v.  Hanson  32,  326 

v.  Purdy  347 

v.  Sinelkler  443 

Lowe  v.  Griffith  412 

Lower  Augusta  v.  Salinsgrove       278  a 

Lowey  v.  State  367 

Lowndes  v.  Lowndes  281 

Lowry  v.  Button  251 

v.  Drake  446 

v.  State  354 

Loyd  v.  Malone  361,  385 

Lucas  v.  Brooks  53 

v.  Rickerson  89 

Luck  v.  Luck  230 

Ludwig's  Appeal  58 

Lufkin  v.  May  all  443 

Luhrs  v.  Eimer  39 

Lumb  v.  Milnes  105 

Lumley  v.  Gye  260,  263 

Lunay  v.  Vantyne  232 

Lunday  v.  Thomas  343 

Lushington  v.  Sewell  107 

Luther  v.  Cote  58 

Lygo  v.  Newbold  429 

Lvn  v.  Ashton  137 

Lynch  v.  Bond  438 

v.  Lynch  36 

v.  Nurdin  429 

Lynde  v.  Budd  441 

v.  McGregor  202 

v.  Rotan  372 

Lyndon  v.  Lyndon  23,  24 

Lyne,  Succession  of  392 

Lvnela  v.  Bollini  267  a,  268 

v.  Kirby  361,  361  a 

Lvon  v.  Green  Bay  R.  118 

v.  Vanatta  361 

Lyons  v.  Blenkin  246 

Ly  tie's  Appeal  145 

M. 

Mac  Connell  v.  Lindsay  122,  136 

Maccord  v.  Osborne  433 

Mack  r.  Brammer  351.  353 

;•.  State  426 

Mackall  v.  Mackall  270 

Mackensie.  Re  393 

Mackin  r.  Morse  354 

Mackinley  v.  McGregor  127,  306 

Maclay  v.  Equitable  Co.  348,  352 


lvi 


TABLE    OF   CASES. 


SECTION 

Maelay  v.  Love    114,  143,  212,  257,  269 

Maclin  v.  Haywood  191 

r.  Smith  338 

Macready  v.  Wilcox  290,  333 

Macvey  v.  Macvey  303 

Madison  County  o.  Johnston  368 

Madox  v.  Nowlan  178 

Magee  v.  Holland  202 

Magee's  Estate  277 

Magniac  v.  Thompson  173,  188 

Magrath  v.  Magrath  144  a 

Magruder  v.  Darnall  59,  326,  376 

v.  Goodwin  388 

v.  Goodwyn  382 

v.  Peter  350 

Maguinay  v.  Sandek  261 

Ma^'uire  v.  Maguire  12,  337 

Mahoney  v.  Dore  402 

v.  MeGee  361 

Major  v.  Holmes  146 

v.  Lansley  133 

v.  Symes  143,  149,  150 

Male  v.  Roberts  393 

Mallinson  v.  Mallinson  249,  250 

Mallory  v.  Vanderheyden  57 

Manby  v.  Scott  62,  66 

Manchester  v.  Smith  268 

Mangam  v.  Brooklyn  R.  R.  Co.        429 

Mangan  v.  Atterton  428 

Maniev  v.  Field  261 

Mann  v.  McDonald  348 

v.  State  53 

Manning  v.  Baker  372,  374 

v.  Chambers  186 

r.  Johnson  446 

v.  Manning  372,  382 

Man  son  v.  Felton  32 

Manvell  v.  Thompson  261 

Mann  aring  <■.  Sands  60 

Maple  /•.  Wightman  4()4 

Marcellin,  Matter  of  305 

March  /•.  Bennett  347 

v.  Bcrrier  357 

Marchand  v.  (iriffon  146,  152 

Margrett,  /' •  /><i't>  404 

Marheinske  '•.  (irothous  334 

Markey  r.  Brewster  274 

Mark  ley  /•.  Wartman  67 

Marlow  v.  Pitfeild  414 

Marquardt  '•.  Flaugher  111'/ 

Marquess  v.  he  Baw  337 

Marsh,  Ex  parti  138,  173 

i    Alford  151 

-.  Blackmail  265 

-    Loader  .'i'.!.") 

v    Marsh  53,  120 

hall  r.  Crutwell  LOO 

'•.  Jaquith  ls!i 

Marshall  218 

<    l  i;i  ket  75 

'■];■  244,248,250,278  a 


SECTION 

Marshall  v.  Rutton  58,  67 

Marston  v.  Bigelow  2'jij 

v.  Brittenham  150,  155 

Mart  v.  Brown  329 

Martin  v.  Aetna  Ins.  Co.  232,  253 

v.  Colburn  126 

v.  Curd  120 

v.  Davis  349 

v.  Foster  196,  318 

v.  Gale  414 

v.  Mayo  435 

v.  McDonald  329 

v.  Payne  261 

v.  Rector  120 

v.  Robson  328,  329 

v.  State  395 

v.  Stevens  349 

v.  Suber  153 

v.  Way  man  449 

Martinez  v.  Ward  168 

Martlett  v.  Nilson  279 

Marvin  v.  Schilling  347,  361 

Marye  v.  Root  154 

Mascolo  v.  Montesanto  431 

Mason  v.  Bowdes  168 

v.  Buchanan  352 

v.  Hutchins  252  a 

v.  Mason  381 

v.  Morgan  58 

v.  Wait  361 

v.  Wright  408,  443 

Mass.  Gen.  Hospital  v.  Fairbanks     344 

v.  Hall  451 

Massey  v.  Massey  352 

v.  Parker  105 

Massingale  v.  Tate  305 

Master  v.  Fuller  134 

Master  of  Rolls  v.  Houghton  271 

Matherson  v.  Davis  447 

Mathes  v.  Shank  146 

Mathews  r.  Cowan  424 

Matlock  c.  Rice  372 

Matthew  v.  Wade  308 

Matt  lie  w man's  Case  135 

Matthews  v.  Brise  352 

v.  Cen.  l'ac.  It.  79 

v.  Copeland  89,114 

?'.  Jenkins  75 

v.  Sheldon  155 

Matthewson  v.  Perry  254 

Mattingley  v.  Nye  187 

Mattocks  v.  Stearns  89 

Mat  toon  v.  Cowing  367,  369,  373 

Mattox  v.  Patterson  874 

Maudslay  v.  Maudslay  221 

Maull  v.  Vaughan  210 

Maunsell  v.  White  7s 

Mawson  v.  Blane  433 

Maxon  r.  Sawyer  311 

Maxwell,  Ex  parte  ;;,,<> 

v.  Campbell  303,  364 


TABLE  OF   CASES. 


lvii 


8ECTI0N 

May  v.  Duke 

848 

38(i 

v.  May 

374 

:;7<i 

v.  Skinner 

351 

May  bin,  Re 

367 

Mayer  v.  McLure 

445 

Mayers  v.  Kaiser 

168 

Mayfield  v.  Clifton 

84 

May  hew  v.  May  hew 

36 

v.  Thayer 

61,66 

164 

Maynard  v.  Vinton 

53 

Mayne  v.  Baldwin 

251 

v.  Williams 

211 

Mayor  v.  Hutchinson 

143 

Mazouck  v.  Iowa  Northern 

K.  R. 

Co. 

155 

McAdam  v.  Walker 

18 

McAfee  v.  Robertson 

7,72 

McAllister  v.  McAllister 

218 

v.  01  m stead 

319 

McBride  v.  McBride 

249 

McBurnie,  Ex  parte 

174 

McCahan's  Appeal 

348 

McCall  v.  Flippin 

347 

349 

MeCampbell  v.  McCampbell 

191 

192 

McCarragher  v.  Rogers 

428 

McCartee  v.  Teller 

399 

McCarthy  v.  Henderson 

409 

v.  Hinman 

239 

v.  Nicrosi 

407 

McCarty  v.  Carter 

440 

v.  Murray 

40(5 

v.  Woodstock  Co. 

405 

McCliesney  v.  Brown 

136 

MeCleary  v.  Mentse 

377 

McClellan  v.  Kennedy 

388 

i\  Tilson 

199 

McClelland  v.  McClelland 

332 

McClintic  v.  Ochiltree 

138 

McCloskey  v  Seyphert 

267  a 

268 

McClure  v.  Commonwealth 

303 

32»i 

v.  Evans 

372 

v.  McClure 

423 

McClurg  v.  Perry 

23,  1 

McClurg's  Appeal 

30 

McCluskey    v.  Provident   Institu- 

tion 

162 

McConnell  v.  Martin 

89 

155 

McCoon  r.  Smith 

423 

McCormick  v.  Leggett 

439 

v.  McCormick 

36 

v.  Penn.  Cent   R. 

208 

McCowan  v.  Donaldson 

119 

M'Coy  v.  Huffman 

443 

M'Crillie  v.  Howe 

414 

McCrocklin  v.  McCrocklin 

21  s 

McCubbin  v.  Patterson 

217 

McCue  t\  Garvey 

L99 

M'Culloclie,  In  re 

317 

McCullough  v.  Ford 

94 

McCutcber  v.  McGahay 

63,  ( 

McDaniel  v.  Mann 

337 

Mc David  r.  Adams 
McDonald,  In  re 

v.  Crockett 
McDonnell  v.  Harding 

v.  Meadows 

v.  Montague 
McDow  v.  Brown 
M'Dow's  ( !ase 
McDowell  v.  Bonner 

v.  Georgia  II.  R. 
McDuff  v.  Beauchamp 
McDuffie  v.  Melntire 
McElfresh  v.  Kirkendall 
McElhenny's  Appeal 
McElmurray  v.  Turner 
McElney  ".  Musick 
McFaddin  v.  Crumpler 

v.  Hewitt 
McFaddyn  v.  Jenkins 
McFarland  v.  Conlee 
McFarlane  v.  Randle 
McGale  v.  McGale 
McGan  v.  Marshall 
M'George  v.  Egan 
M'Giffen  v.  Stout 
M'Gill  v.  Woodward 
McGlashlin  v.  Wyatt 
McGratb,£e 

v.  Donnelly 
McGuiness  v.  Butler 
McGunigal  v.  Mung 
Mclnnes  v.  More 
Mcintosh's  Estate 
Mclntyre  v.  Knowlton 
McKay  v.  Allen 
McKee  v.  Reynolds 
McKeever  v.  Ball 
McKenna  v.  Merry 

v.  Rowlett 
McKennan  v.  Phillips 
McKeown  v.  Johnson 
McKinley  v.  McGregor 
Mc  Kinney  v.  Clark 

v.  Hamilton 

v.  Jones 

v.  Noble 
McKinnon  v.  McDonald 
McKnight  v.  Walsh 
McLane  v.  Curran 

v.  Lancaster 
McLannan  v.  Adams 
McLaughlin  v.  Ham 
McLean,  Succession  of 

v.  Longlands 
McLendon  v.  Harlan 
McMahill  v.  McMahill 
McMahon  v.  McManus 

v.  Sankey 
McMinn  '■.  Richmonds 
McMullen  v.  McMullen 
M'Myn,  lie 


BBOTIOH 

80,  81 

4  20 

121 

352 

367 

443 

388 

420 

332 

259,  262 

193,  398 

348,  352 

37,  "5 

374,  375 

204 

348 

143 

366 

189 

384 

365,  366,  372 

438,  440 

63 

449 

437 

367 

288,  303,  316 

65 

428 

278 

27 

373 

154,  280 

127 

217 

361 

413 

137 

112,  123,  218 

75 

72,  164 

24 

152 

343 

290 

164 

240 

374 

190 

01 

117 

7 

161 

367 

27:! 

263 

254 

404,  414 

151,  190 

198 


lviii 


TABLE   OF   CASES. 


SECTION 

M'Nair  r.  Hunt  348 

McNally  v.  Weld        186,  188,  211,  311 

McNeely  ».\  Jameson  329 

McNeer  v.  McNeer  114 

MeNutt  v.  McNutt  183 

MePlierson  v.  Commonwealth  17 

McQueen  r.  Fulgam  75 

McWilliams  v.  Longlands  293 

v.  Norfleet  367 

Mead  v.  Hughes  219 

Meader  v.  Page  72 

Meakins  v.  Morris  419,  420 

Meals  v.  Meals  85 

Means  v.  Robinson  391 

Mebane  v.  Mebane  343 

Mechanics  Bank  v.  Waite  312 

Medbury  v.  Watrous  443 

Medworth  v.  Pope  281 

Meek  v.  Kettle  well  189 

v.  Perry  388 

Meeker  v.  Wright  183 

Meese  v.  Fond  du  Lac  77 

Meister  v.  Moore  29,  32<( 

Mellish  v.  Mellish  326,  389 

Melvin  v.  Melvin  36 

Mendes  v.  Mendes  299,  311,  313 

Menifu  v.  Hamilton  358 

Menk  v.  Steinfort  53 

Menvill's  Case  89 

Mercein  v.  Jackson  259 

v.  People  216,  248 

v.  Smith  152 

Mercer,  Ex  parte  186 

Merchant's  Fire  Ins.  Co.  v.  Grant    438 

Mercine  v.  People  251 

Merkell's  Estate  374 

Merrells  i».  Phelps  357 

Merriam  v.  Boston  R.  149 

v.  Cunningham     411,  412,  413,  425 

v.  Harsen  192 

v.  Wilkins  437 

Merrick  v.  I'lumley  154 

Merrill  v.  Bullock  124 

v.  Smith  162 

Merritt  v.  Fleming  116,  125,  27!) 

v.  Simpson  351 

v.  Williams  43 1 

Merriweather  v.  Brooker  87,  162 

Merry  v.  Nickalls  407 

Messenger  r.  Clarke  104,132 

Messervey  <•   Barelli  384 

Metcalf  v.  Alter  393 

v.  Luther  329 

M.  tli.  Episcopal  Church  v.  Jaques  112, 

128,  136 

Metier  v.  Metier  5:5 

Metropolitan  Bank  v.  Taylor  143 

Mette  v.  Feltgen  439 

Mewhirter  v.  Flatten  77 

Mews  r.  Mews  ]<ii 

Me_\  er  v.  Haworth  59 


SECTION 

Meyer  v.  Montgomery 

169 

v.  Rahte 

167 

Michael  v.  Dunkle 

41 

v.  Locke 

349 

v.  More 

174 

Mickelberry  v.  Harvey 

70,  72 

Middlebury  College  v.  Chandler      412 

Middleton  v.  Hoge  441 

Midland  R.  R,  Co.  v.  Pye  219 

Miles  v.  Boyden  255,  449,  450 

v.  Chilton  21 

v.  Lingerman  446,  447 

v.  Williams  88 

Milford  v.  Milford  239 

v.  Worcester  29 

Millard  v.  Hewlett  407 

Miller  v.  Albertson  133 

v.  Blackburn  82 

?'.  Brown  143 

v.  Carnall  377 

v.  Delamater  72 

v.  Edwards  155 

v.  Han  ley  188 

v.  Hine  150 

v.  Miller  23,  218,  269,  277 

v.  Newton  143 

v.  Shackleford  90,  91 

v.  Simonds  270 

y.  Sims  408 

v.  Smith  50,  343,  407 

v.  State  50,  63 

v.  Stewart  277 

v.  Williams  87 

v.  Williamson  160 

Miller's  Appeal  272 

Miller's  Estate  351 

Mills  v.  Graham  424 

v.  Hopkins  334 

v.  Humes  449 

v.  Wyman  237,  241,  265,  209 

Milner  v.  Lord  Hare  wood  341 

v.  Milner  77 

Miner  v.  Miner  248 

Minfy  v.  Ball  326 

Minnesota  Co.  v.  Beebe  300 

Minnock  v.  Shortridge  408 

Minor  v.  Betts  365 

Minter  v.  Clark  382 

Missley  v.  Ileisey  155 

Mitchell  v.  Colglazier  126 

v.  Jones  3(51 

v.  Mitchell  15,  22 

v.  Robinson  492 

v.  Sawyer  16(5 

v.  Seitz  162 

17.  Treanor  64,  09 

v.  Union  Ins.  Co.  253 

v.  Williams  382 

Mitford  v.  Mitt'ord  87 

Mi/en  t\  Pick  60,68 

Mockey  v.  Gray  449 


TABLE   OF   CASES. 


lix 


8ECTION 

Modawell  v.  Holmes  317a 

Modiaett  v.  Pike  41 

Mohny  v.  Evans  412,  413 

v.  Hoffman  26] 

Mohr  ;;.  Mahiere  361 

v.  Tulip  301 

Monaghan  v.  Fire  Ins.  Co.  402 

v.  School  District  252,  267r/ 

Monerief  v.  Ely  279 

Monell  r.  Monell  382 

v.  Scherrick  270 

Monnin  v.  Bernjon  388 

Montague,  Re  340 

v.  Benedict  61,  62,  63,  64 

Mont  ford  (Lord)  v.  Cadogan  (Lord)  140 

Montgomery  v.  Carlton  407 

v.  Chaney  272 

v.  Henderson  177,  180 

v.  Montgomery  23,  227a 

v.  Smith  317 

v.  Sprankle  169 

v.  Tate  89 

v.  Tilley  186 

Monumental,    &c.  Association  v. 


404,  409 

324 

83 

87,  161 

263 

232 

439,  440 

377,  439,  446 

200 

94 

394 

107 

388 

227a 

377 

57 

85,  218,  248,  397,  398 

105,  131 


Herman 
Moody,  Re 

v.  Hemphill 

v.  Matthews 
Moon  v.  Towers 
Moore,  Re 

v.  Abernethy 

v.  Baker 

v.  Christian 

v.  Cornell 

v.  Graves 

v.  Harris 

v.  Hazleton 

v.  Hegeman 

v.  Hood 

v.  Leseur 

v.  Moore 

v.  Morris 

v.  Page  187 

v.  Richardson  89 

v.  Robinson  219 

v.  Stevenson  219 

v.  Webster  107 

v.  Whittaker  31 

Moorehead  v.  Orr  373 

v.  Wall  is  367 

Moores  v.  Moores  36 

Moorhouse  v.  Colvin  177,  179 

Mordaunt  v.  Moncreiffe  220  b 

Moreau  v.  Branson  145 

Morehouse  v.  Cook  305,  316 

Moreland  v.  Myall  116,  120  a 

Morgan  v.  Anderson  316 

v.  Bolles  162 

v.  Dillon  316,  318 

v.  Hannas  374 

v.  Johnson  385 


Morgan  v.  Morgan 

v.  Perhamus 

v.  Perry 

v.  Potter 

v.  Smith 

v.  Thames  Bank 

v.  Thorne 
Morrell,  In  re 

v.  Dickey 

v.  Morrell 
Morrill  v.  Aden 
Morris  v.  Cooper 

v.  Davis 

v.  Garrison 

v.  Harris 

v.  Low 

v.  Morris 

v.  Palmer 

v.  Stephenson 

v.  Swaney 
Morrison  v.  Dobson 

v.  Kinstra 

v.  Morrison 

v.  Thistle 
Morrison's  Case 
Morrissey,  Re 
Morrow  v.  Royall 

v.  Wliitesides 
Morse  v.  Ely 

v.  Morse 

v.  Welton 

v.  Wheeler 
Mortara  v.  Hall 
Mortgage  Co.  v.  Sperry 
Mortimer  v.  Welton 

v.  Wright 
Morton  v.  Rainey 
Moseby  v.  Partee 
Moseley  v.  Rendell 
Moses  v.  Faber 

v.  Fogartie 

v.  Stevens 
Mosteller's  Appeal 
Moter  v.  Madden 
Motley  v.  Head 

v.  Motley 
Motteaux  v.  St.  Aubin 
Moulton  v.  Haley 

v.  Simms 
Mount  v.  Kesterton 
Mountain  v.  Fisher 
Mountfort,  Ex  parte 
Mowbray  v.  Mowbray 
Mo  wry  v.  Hawkins 

v.  Latham 
Moye  v.  Waters 
Mo3Ter  v.  Fletcher 
Mover's  Appeal 
Mndway  v.  Croft 
Mulford  v.  Beveridge 
Mulhalleu  v.  -Marum 


SECTION 

63,  371,  375 
L67 

226 

329,  343 
260 

82 

450 

305 

328,  329 

20 
416 
309 
225 
343 
300 
254,  2C7« 
360 

61 

93 
225 

27 
64,  386 
225  b 
192 
329 
419 
386 

56 
413,  446 
36,38 
268 
445 
413 
351 
268 
241 
274 

94 
210 
317 

64 
443 
209 
375 
380 
389 
402 
155 
308 

94 
443 
246 
239,  273 
126 
380 
119 
337 
155 

18 
361 
338 


lx 


TABLE    OF    CASES. 


SECTION 

SECTION 

Muller  v.  Benner 

321,  34^, 

350 

Neal's  (Paul)  Case 

166 

Multiern  v.  McDavitt 

374 

Neals  t\  Gil  more 

273 

Mulvey  v.  State 

50 

Nedby  v.  Nedby 

190 

Munday  v.  Baldwin 

329 

Needliam  v.  Bremrner 

66 

Munger  v.  Hess 

424 

Needles  v.  Needles 

83 

Munro  v.  Munro 

220 

Neeld  v.  Neeld 

46 

v.  Reed 

429 

Neil's  Appeal 

277 

v.  Saunders 

231 

Neill  v.  Neill 

367 

Munroe  v.  l)e  Chemant 

70 

Neilson  v.  Brown 

41,  77 

v.  Phillips 

326 

v.  Cook 

373, 

374,  376 

Munson  v.  Munson 

303 

Neinceiwicz  v.  Gahn 

95 

v.  Washband 

412 

Nelson  v.  Eaton 

402 

Murdock  v.  Murdock 

273 

v.  Green 

304 

Murley  v.  Roche 

429 

v.  Lee 

330 

Murphree  v.  Singleton 

86, 

163 

v.  McDonald 

157 

Murphy,  Ex  parte 

249 

v.  Reed 

330 

v.  Borland 

452 

v.  Searle 

59 

v.  Green 

390 

v.  Smith 

119 

v.  Johnson 

419 

v.  Stocker 

425 

v.  Ottenheimer 

241 

v.  Wyan 

272 

Murray  v.  Barber 

450 

Nesbitt  v.  Turner 

59 

v.  Barlee 

134 

Netterville  v.  Barber 

167 

v.  Murray 

181 

Nettleton  v.  State 

317 

Musgrave  v.  Conover 

301 

Neufville  v.  Thompson 

162 

Musser  v.  Gardner 

53 

Neves  v.  Scott 

174,177 

v.  Oliver 

382 

388 

Nevins  v.  Gourley 

114,155 

v.  Stewart 

279 

Newbery,  In  re 

340 

Musson  v.  Trigg 

124 

136 

Newbrick  v.  Dugan 

164 

Mustard  v.  Wohlford 

404 

442 

Newcomer  v.  Hassard 

133,  134 

Myers  v.  Hanlass 

375 

Newcomer's  Appeal 

367 

v.  King 

187 

191 

New  Hampshire  Ins.  Co.  i 

.  Noyes    41] 

v.  Myers 

238 

Newlands  v.  Paynter 

82, 

104,  132 

v.  Pearsall 

317 

Newman  v.  James 

124 

v.  Rives 

388 

v.  Morris 

169 

?-.  Wade 

338 

339 

v.  Phillipsburg  R. 

429 

Myrick  v.  Jacks 

386 

r.  Reed                  240, 

353, 

374,  375 

r.  Jacobs 

380 

Newport  t\  Cook 

83,  240 

My  rick's  Probate 

26 

329 

Newry  &  Enniskillen  R.  R.  Co 

.  v. 

Coombe 

407 

N. 

Newton  v.  Hatter 

77,79 

v.  Janvrin 

303 

Nace  v.  Boyer 

24 

v.  London,  &c.  R. 

450 

Naden,  Eu  parte 

16 

v.  Roe 

57 

Nairn  v.  Prou    ■ 

173 

Nicbol  v.  Steger 

413 

Nalle  v,  I.i\ fly 

188 

Nichols  r.  Allen 

279 

Nance  v.  Nance 

353 

372 

i>.  O'Neill 

89 

Napier  v.  Efnngham 

398 

Nicholson  v.  Ileiderhoff 

148,  157 

Nash  v  Jewetl 

425 

v.  Spencer 

:\'.\~ 

v.  Mitchell 

143,  153 

167 

r.  W'ilborn                70, 

313, 

413,449 

v.  Nash 

83 

Nicholson's  Appeal 

316, 

317,  348 

r.  SpofTord 

95 

Nicol,  Matter  of 

301 

Nashville,  &c.  R.  R.  Co.  v 

Elliott 

143 

v.  Nicol 

218 

Natchez  R.  v.  Cook 

258 

259 

Nightingale  v.  Withington 

252, 

Nathans  v.  Arkwright 

405 

440 

268,  402 

National  Bank  v.  Sprague 

169 

Niles  v.  Hall 

114 

le  v.  State 

867 

Niller  v.  Johnson 

187 

N;i  j  [or  v.  Winch 

886 

Nine  v.  Starr 

270 

Neal  *    Bartleson 

808 

Nippes's  Appeal 

187 

V.  1  '•■ 

4  OS 

Nispel  v.  Laparle 

106,  167 

>    Grillet 

428 

Nissley  v.  Heisey 

116 

v.  Hei  man 

162 

Noble  v.  Runyan 

361 

TABLE   OF   OASES. 


lxi 


SECTION 

Noice  v.  Brown  260 

Nolte  r.  Libbert  402 

Nonnemacher  v.  Nonnemacher  18 

Norbury  v.  Norbury  353 

Norcro3s  v.  Norcross  29 

v.  Stuart  77 

Nonlbolt  v.  Nordbolt  410 

Norris  v.  Beyea  114 

v.  Dodge's  Adm'r  241 

v.  Lantz  85 

v.  Vance  445,  447 

North,  In  re  233 

v.  James  447 

v.  Joslin  303 

North  Am.  Coal  Co.  v.  Dyett  138 

North  Penn.  E.  R.  Co.  v.  Mahoney  429 

North   Western  Life   Ins.    Co.    v. 

Allis  145 

Northcote  v.  Doughty  433 

Northern  Cent.  R.  v.  Mills  79 

Northern     Line     Paoket     Co.  v. 
Shearer                              53,  230,  268 


Northrop  v.  Knowles 

29 

Norton  v.  Ailor 

273 

v.  Cowen 

459 

v.  Fazan 

66 

v.  Nichols 

58 

v.  Rodes 

65 

v.  Turvill 

134 

Norwood  v.  Stevenson 

79 

Nostrand  v.  Ditmis 

64 

Note  v.  Sampson 

361 

Noyes  v.  Blakeman 

138 

Nugent  ;;.  Vetzera 

326 

Nunn  v.  Hancock 

336 

Nurse  v.  Craig 

68 

O. 

Oakes  v.  Oakes 

269 

Oakley  v.  Pound 

143 

Obermayer  v.  Greenleaf 

174 

O'Brien  v.  Strang 

376 

Occe  v.  Becten 

238 

Occleston  v,  Fullalove 

281 

O'Conner  v.  Carver 

385 

O'Dail}'  v.  Morris 

58,  148 

Odend'hal  v.  Devlin 

188 

O'Donnell  v.  Broad 

450 

Offley  v.  Clay 

58,81 

O'Flaherty  v.  Union  R.  R.  Co. 

429 

O'Gara  v.  Eisenlolir 

204 

Ogborn  v.  Francis 

261 

Ogden  v.  Prentice 

63,64 

Oglander  v.  Baston 

88 

Oglesby  v.  Hall 

169 

Otflesby  Coal  Co.  v.  Pasco 

58,97 

O'Hara  v.  Alexander 

137 

v.  Shepherd          344,  345, 

350,  353 

Oinson  v.  Heritage 

66,67 

O'Keefe  v.  Casey 

317  a 

SECTION 

O'Kill  v.  Campbell  124,  127 

Old  Dominion  v.  McKenna  466 

Oldin  v.  Samborn  389 

Oliver  c  Carew  140 
v.  Hammond  155 
Oliver  v.  Iloadlet  319,  337 
v.  Hotidlet  402 
v.  McClellan  423 
v.  McDuffie  413 
v.  Oliver  35 
v.  Kobertson  67 
v.  Woodroffe  400 
Olivier,  Succession  of  265 
Olmstead  v.  Keyes  198 
OIney  v.  Howe  123 
Olsen  v.  Thompson  374 
Olven  v.  Bryant  281 
v.  Peeblis  353 
Omaha  Horse  R.  v.  Doolittle  328 
O'Neal  v.  Robinson  269 
O'Neil  v.  Chicago  R.  407 
O'Neil's  Case  316 
Opdike's  Appeal  277 
Ord  v.  Blackett  333 
Ordinary  v.  Heishon  366,  375 
v.  Smith  337 
Ordinary  v.  Dean  343 
Ordway  v.  Bright  124 
v.  Phelps  388 
v.  Smith  363 
Ornville  v.  Glenburn  268 
Orris  v.  Kimball  435 
Orthwein  v.  Thomas  223,  225 
Ortiz  v.  De  Senavides  447 
Osborn  v.  Allen  245 
v.  Edwards  85,  92 
v.  Farr  444 
v.  Grelett  70 
v.  Van  Home  239,  240 
Osgood  v.  Bliss  180 
v.  Breed's  Heirs  272 
Oswald  v.  Broderick  437 
Otis  v.  Hall  337 
Ottee  v.  Beckton  238,  240 
Ottman  v.  Moak  438 
Overholt  v.  Ells  well  79 
Overseers  of  Alexandria  v.  Over- 
seers of  Bethlehem  252 
Overton  v.  Bannister  425 
v.  Beavers  337 
v.  State  53 
Owen  v.  Cawley  136,  149 
v.  State  44 
v.  White  244 
Owens  v.  Dickenson  134 
Owings  v.  Tucker  441 
Ox  ley  v.  Tryon  403 
Oxly  v.  Tryon  407 
Oxnard  v.  S wanton  168 
Ozley  -.  Ikelheimer  124 


Ixii 


TABLE   OF   CASES. 


Packard  v.  Arellanes 
Packer  v.  Windham 
Paddock  v.  Wells 
Padfield  v.  Padfield 
Page  v.  Hentize 

v.  Morse 

v.  Page 
Paine  v.  Fair 

v.  Hollister 

v.  Hunt 
Palliser  v.  Gurney 

v.  Miller 
Palmer  v.  Garland 

v.  Miller 

v.  Oakley      301,  306,  308, 

v.  Smith 

v.  Trevor 
Pal  mesh  v.  Darby 
Park  v.  Hopkins 
Parke  v.  Barron 

v.  Bates 

v.  Converse 

v.  Kleber 

v.  Lincoln 

v.  Steed 

v.  Way 
Parker  r.  Collins 

v.  Elder 
Parker's  Appeal 
Parks  v.  Barrowman 

r.  Cushman 
Parmelee  v.  McGintry 

v.  Smith 
Parnell,  Goods  of 
Parr  v.  State 
Parsley  v.  Martin 
Parsons  v.  Keys 

v.  Rolfe 
Parton  v.  Hervey 
Partridge  o.  Stocker  164, 

Paschall  v.  Hall 
Passenger  v.  Thurston 
Passenger  R.  R.  Co.  v.  Stuter 
Patchetl  v.  ilolgate 
Patchkin  o.  ( Iromacle 
Patrick  v.  Litell  143, 

V.  Patrick 
Pattee  v.  Harrington 
Patten  <    Patten  120, 

Patterson    ,  Booth 

v.  Flanagan 

v.  1 1 

v.  B 

'    La  a  rence 

v.  Pullman 
Patton  -    I  harlestown  Hank 
Furl  htneier 

r.   (  . 

v.  Thompson 
Paul  v.  Himmel 


SECTION 

8ECTION 

Paul  v.  Paul 

174,  183  a 

7 

v.  York 

448 

88 

Paulding's  Will 

37 

16 

Paulin  v.  Howser 

263 

205 

Pawson  v.  Brown 

16 

187 

Payne  v.  Hutcheson 

188 

446 

v.  Scott 

338 

94 

v.  Stone 

351 

153 

v.  Williams 

41 

198 

v.  Wilson 

188 

145 

Peacock  v.  Peacock 

3,33 

159 

Peacock's  Trusts,  Re 

163,  166,  167, 

404 

210 

363 

Peake  v.  La  Baw 

145 

404, 

438 

Peale  v.  Thurman 

350 

343, 

351 

Pearce  v.  Foster 

462 

157 

v.  Olney 

238 

83 

Pearcy  v.  Henly 

150 

347 

Pearman  v.  Pearmau 

44 

75 

Pearson,  Re 

375 

22 

v.  Darrington 

61,  64,  68 

153 

v.  McMillan 

376,  382 

129 

Peaslee  v.  McLoou 

52,  53 

61 

Peck  v.  Braman 

373 

305 

v.  Brummagin 

343 

57 

v.  Marling 

219 

225 

v.  Peck 

26,  27,  363 

151 

Peckham  v.  Hadwen 

449 

446 

Pedley  v.  Wellesley 

53 

16 

Peigne  v.  Snowden 

186,  375 

94 

Pcllage  ?\  Pellage 

269 

83 

Pelletier  v.  Couture 

408 

363 

385 

Pemberton  v.  Johnson 

148 

253 

v.  McGill 

156 

300 

Pemberton  Building  Association  v. 

377 

Adams 

426 

355 

Pence  v.  Dozier 

262 

413 

Pendleton  v.  Pomeroy 

450 

157 

Pendrell  v.  Pendrell 

225 

21 

Penfold  v.  Mould 

189,  384 

165 

168 

Penleaze,  Ex  parte 

238 

189 

Penn  v.  Ileisy 

389 

87 

Penn  v.  Whitehead     154 

,  164,  165,  168 

432 

Penn  v.  Young 

155 

225 

Penn.  R.  v.  Goodenough 

79 

404 

Pennington  v.  Fowler 

326 

144 

158 

Pennsylvania  v.  Keller 

259,  202 

187 

Pennsylvania  It-  v.  Bantom              259 

77 

Pennsylvania,  &C.  Co.  v. 

Neal          385 

153 

155 

Penrose  v.  Curren 

424 

385 

Penso  v.  McCormick 

428 

152 

Pentz  v.  Simonson 

143,  155 

21 

225 

People  v.  Barton 

383 

200 

r.  Board  of  Education 

157 

i;.  Boyce 

249,  298 

450 

v.  Brooks 

•jr.) 

186 

■.  Byron 

321,  322 

450 

v.  Chearay 

248 

10S 

o.  '  lircuit  Judge 

370 

361 

,  886 

r.  Clark 

261 

868 

v.  Dean 

374 

TABLE   OF    CASES. 


lxiii 


SECTION 

People  o.  Ewer 

242 

v.  Houghton 

53 

v.  Ingersoll 

350 

v.  Kearney 

3:0 

v.  Kendall 

395 

u.  Kling 

278  a 

v.  Mercein     248, 

249,  250,  251,  204 

v.  New  York 

449 

v.  Olmstead 

244 

v.  Randolph 

395 

v.  Seelye 

311,  382  a,  389 

v.  Slack 

20 

v.  Townsend 

305 

v.  Turner 

256 

v.  Walsh 

487 

v.  Watts 

250,  333 

v.  Westbrook 

52 

v.  Wilcox      245, 

305,  308,  332,  333 

v.  Winters 

44,  50 

v.  Wright 

50 

Pepper  v.  Lee  117,  123,  124 

v.  Smith  150 

v.  Stone  315,  321,  322 

Pepperell  v.  Chamberlain  86 


Percy  v.  Cockrill 

114 

Perkins  v.  Cottrell 

89 

v.  Elliott 

143, 145 

v.  Finnegan 

316 

v.  Perkins 

190,  391 

v.  Stimmel 

367 

v.  Tooley 

367 

Perl  v.  Phelps 

252  a 

Perrin  v.  Wilson 

413 

Perry  v.  Brainerd 

311 

v.  Carmichael 

255,  259,  324 

v.  Hutchinson 

261 

v.  Perry 

269 

v.  Whitehead 

281 

Person  v.  Chase          403, 

407,421,443 

Peteren  v.  State 

398 

Peters  v.  Fleming 

411,  413 

v.  Fowler 

120  a 

Petersham  v.  Dana 

278  a 

Peterson  v.  Holney 

412 

Petrie,  Ex  parte 

239 

Pettus  o.  Clarion 

354 

v.  Sutton 

353 

Petty  v.  Anderson 

163,414  a 

v.  Roberts 

442,  446 

Peyton  v.  Smith 

299 

Pfeiffer  v.  Knapp 

382,  385 

Pilaris  v.  Leachman 

89 

v.  Lytle 

91 

Phelps  v.  Morrison 

188 

v.  Simons 

193 

v.  Walther 

219 

v.  Worcester 

412,  413 

Philadelphia  v.  Williamson 

Phillips,  £\r  parte 

279,  347 

v.  Barnet 

52 

v.  Culliton 

218 

SECTION 

Phillips  v.  Davis  338,  374 

v.  Graves  143 

v.  Green  405,  409,  438,  439 

v.  Lloyd  412 

v.  Meyers  187 

v.  Phillips  316,  363 

v.  Wooster  187 

Phillipson  v.  llayter  61,  63 

Philpot  v.  Bingham  401,  406 

Pickens  v.  Kniseley  136 

Pickering  v.  De  Rochemont  382 

v.  Pickering  77,  79 

Pickler  v.  State  406 

Pico,  Re  277 

Pidgon  v.  Crane  291 

Pier  v.  Siegel  155 

Pierce,  Matter  of  298 

Re  386 

v.  Irish  372,  388 

v.  Millay  429 

v.  Pierce  125,  183,  239 

v.  Prescott  376 

v.  Waring  386,  387 

Pierpont  v.  Wilson  66 

Pigott  v.  Pigott  88 

Pike  v.  Baker  72,  116,  190 

v.  Fitzgibbon  136 

Pillow  v.  Bushnell  77 

Pirn  v.  Downing  322 

Pinard's  Succession  7 

Pingree  v.  Goodrich  13 

Pinkston  v.  McLemore  162 

Pinney  v.  Fellows  112,  125,  186 

Pippen  v.  Wesson  114,  143,  148 

Pippin  v.  Jones  324 

Pitcher  v.  Laycock  440,  446 

v.  Plank  Road  Co.  431 

Pitt  v.  Cherry  301 

v.  Pitt  88 

v.  Smith  18 

Pittman  v.  Pittman  221 

Place  v.  Rhem  187 

Planer  v.  Patchin  57 

Platner  v.  Patchin  57 

Ploss  v.  Thomas  168 

Plotts  v.  Roseberry  241 

Plowes  v.  Bassey  225 

Plumer  v.  Lord  169 

Plummer  v.  Webb  252,  259,  260 

Poffenberger  v.  Poffenberger  162 

Poland  v.  Earhart  259 

Pond  v.  Carpenter  114 

v.  Curtiss  343,  350 

v.  Hopkins  343 

v.  Skeen  183 

Pooley  v.  Webb  127 

Pope  v.  Jackson  361 

v.  Sale  278 

v.  Shanklin  189 

Porch  v.  Fries  96,  201,  313 

Port  v.  Port  26 


Ixiv 


TABLE   OF   CASES. 


Porter  v.  Allen 

v.  Bank  of  Rutland 

v.  Bleiber 

v.  Briggs 

v.  Caspar 

v.  Dunn 

v.  Gamba 

v.  Haley 

v.  Mount 

i>.  Powell 
Porter's  Appeal 
Porterfield  v.  Augusta 
Posey  v.  Posey 
Postern  v.  Young 
Post's  Estate 
Pote's  Appeal 
Potinger  v.  Wightman 
Pott  v.  Cleg 
Potter  v.  Hiscox 

v.  Potter 

v.  State 
Potts  v.  Cogrlell 

v.  Terry 
Poultney  v.  Glover 

v.  Randall 
Powell  v.  Boon 

v.  Cleaver 

v.  Evans 

v.  Gott 

v.  Jonrs 

v.  North 

v.  State 

v.  Wight 
Powers  v.  Russell 

v.  Totten 
Prall  v.  Smith 
Pratt  v.  Baker 

v.  Jenner 

v.  MeJunkin 

v.  Nitz 

v.  Pratt 

v.  Wright 
Pray  v.  Gorhani 
Preble  v  Boghurst 

r.  Longfellow 
Pr<  ntice  v.  1  decker 
Prentiss  v.  Paisley 
Prescott  v.  Brown 

r,  Norris 
Preston  v.  Bancroft 

v.  Evans 
Preus8er  v.  Ilen^haw 
Prevol  o.  Lawrence 
Prewit  v.  Wilson 
Price,  /"  " 

Matter  of 

v.  Hewitt 

•    Jenkins 

».  Price 

'.  Ranches 

v.  Sanders 


SECTION 

SECTION 

53 

Price  v.  Strange 

205 

123,  124 

v.  Winter 

435 

381 

Prichard  v.  Ames 

105 

61 

v.  Prichard 

44 

155 

Pricketts  v.  Pricketts 

209 

53,  81,  162 

Prime  v.  Foote 

304 

167,  168 

Proale  v.  Soady 

221 

149 

Probate  Court  v.  Child 

377 

75 

v.  Hibbard 

329 

241 

v.  Strong 

364 

272 

Probst  v.  Delameter 

492 

37 

Proctor  v.  Seane 

434,  439,  437 

397 

Proudley  v.  Fielder 

107 

304 

Prout  v.  Hoge 

115 

352 

v.  Roby 

124 

282 

v.  Wilier 

435,  439,  445 

230,  234 

Prouty  v.  Edgar 

415,  419 

82 

Prowse  v.  Spurway 

29 

352,  377 

Pry  or  v.  West 

241a 

162 

Pugh,  Ex  parte 

161 

367,  368,  376 

v.  West 

255  a 

177 

Pulbrook,  In  re 

246 

305 

Pulling,  He 

181 

269 

Pullis  v.  Robinson 

195 

377 

Purden  v.  Jackson 

98 

358 

Purrety  v.  Hayes 

361,  459 

246,  288 

Pusey  v.  Harper 

188 

352 

Putnam  v.  Putnam 

59 

406 

v.  Towne 

269 

381 

Pyatt  v.  Pyatt 

239 

351 

l'ybus  v.  Smith 

94,  110,  137 

244 

Pye,  Ex  parte 

103 

329 

70 

158 

Pyle  v.  Cravens 

406 

114 

Q. 

337 

Quaker's  Estate 

120  a 

221 

Queen  v.  Allen 

21 

369,  376 

v.  Carnatic  R.  R.  Co. 

111 

278 

v.  Cress  well 

29 

329 

v.  Curgerwen 

21 

269,  366 

v.  Kenny 

51 

254 

v.  Lumley 

21 

275 

i\  Nash 

278 

337 

Quidort  v.  Pergaux 

162 

388 

Quigley  v.  Graham 

114 

158,  183 

Quincy  v.  Quincy 

66 

80 

Quinlan  r.  Quinlan 

178 

424,  425 

Quirin  v   Cooke 

388 

66 

75 
169 

R. 

174 

Rabb  v.  Aiken 

89 

174 

Rabe  v.  Ilaima 

41 

45 

Racouillat  v.  lJe(]uena 

372 

861 

Radford  v.  Carwile 

129,  133 

425 

Ra gland  v.  Justices 

377 

174 

Railroad  Co.  u.  Chambers 

385 

41,  73 

V.  Harris 

90,  91 

121 

v.  Rainey 

165 

412,  414 

j>.  Watly 

258 

TABLE    OF   CASES. 


lxv 


SECTION 

SECTION 

Railroad  Co.  v.  Young 

428 

Reeves  v.  Webster 

IIS 

R  lilsback  v.  Cooke 

882 

Reg.  v.  Gyngall 

332 

Ruins  v.  Hays 

272 

Regina  v.  Chadwick 

16,21 

Rainsford  v.  Rainsford 

439 

v.  Clark 

235 

250,  332 

Ralston,  Ex  parte 

333 

v.  Edwards 

244 

Ramsay  v.  Richardson 

174 

v.  Howes 

250 

v.  Thompson 

282 

v.  Jackson 

45,48 

Ramsey  v.  Ramsey     305 

316,  332,  333 

v.  Kelly 

45 

Randall  v.  Lunt 

188 

v.  Lord 

403, 

407,  421 

v.  Randall      43,  188, 

191,  217,  218 

j>.  Millis 

23,  27 

v.  Sweet 

414 

v.  Nicholas 

398 

Randlett  v.  Rice 

21 

v.  Orgill 

23,28 

Rankin  v.  Kemp 

373 

v.  Phillips 

395 

v.  Miller 

361 

v.  Plummer 

54 

Ransom  v.  Burges 

238 

v.  Ryburn 

376 

v.  Nichols 

197 

v.  White 

244 

v.  Ransom 

192 

Remington  v.  Field 

350 

Rathbun  v.  Colton 

37G 

Renz,  Re 

143 

Rawlin  v.  Rounds 

77 

Reynold  t>.  Reynold 

240 

v.  Van  Dyke 

69 

Rich  v.  Cockell 

104, 

131,  137 

Rawson  v.  Corbett 

354,  372 

Richards  v.  Burden 

53 

v.  Penn.  R.  R.  Co. 

208 

t\  Richards 

44 

Ray,  Ex  parte 

105 

Richardson  r.  Binney 

388 

v.  Haines 

443 

v.  Borlight 

404 

v.  McGinnis 

351 

v.  Day 

377 

v.  National  Gas  Co. 

58 

v.  Dubois 

67 

v.  Tubbs 

414,  424,  431 

v.  Fonto 

262 

Raybold  v.  Raybold 

162 

v.  Merrill                119, 

162, 

164,  165 

Raymond  v.  Loyle 

241 

v.  Pate 

447 

v.  Sawyer 

343 

v.  Pote 

440 

Raynes  v.  Bennett 

53,61 

v.  Richardson 

350 

Rea  c  Durkee 

66 

v.  State 

386 

v.  Tucker 

53 

v.  Stodder 

123,  137 

Read  v.  Drake 

305 

Richardson's  Case 

255 

v.  Teakle 

64 

Richmond  v.  Adams  Bank 

312 

Reade  v.  Earle 

155 

v.  Boynton 

366 

v.  Livingston        112, 

175,  186,  187 

v.  Tibbies 

150 

Readie  v.  Scoolt 

261 

Ricker  v.  Charter  Oak  Ins.  Co 

253 

Reading  v.  Mulle 

167,  169,  170 

v.  Ham 

187 

v.  Wilson 

337,  344 

Rickerstriker  v.  State 

53 

Ready  v.  Bragg 

188 

Riddle  ;.'.  Hulse 

161,  162 

v.  Haram 

210 

v.  McGinnis 

261 

Ream  v.  Watkins 

267,  268 

Rider  v.  Kelso 

270 

Reando  v.  Misplay 

269,  274 

Ridgway  v.  English 

269 

Redd  v.  Jones 

363 

Ridout  v.  Earl  of  Plymouth 

208 

Redfield  v.  Buck 

187 

Riggs  v.  Fiske 

410 

Redman  v.  Chance 

308 

Rigoney  v.  Jameson 

254 

Reed  v.  Batchelder 

402,  404 

Riley  v.  Byrd 

277 

v.  Beazley 

218 

v.  Mallory 

407,  442 

v.  Bosheare 

452 

v.  Riley 

88,  175 

v.  Lane 

404 

Rinehart  v.  Bills 

41 

v.  Legard 

67 

Ring  v.  Jamieson 

445 

v.  Moore 

66 

Rinker  v.  Streit 

328, 

338,  339 

v.  Newcomb 

168 

Rippon  ii.  Dawding 

176 

v.  Timmins 

354,  376 

Risdon,  Goods  of 

200 

v.  Williams 

262 

Rivers  v.  Carleton 

162 

Reeder  v.  Flinn 

155 

v.  Gregg 

413 

Rees  v.  Keith 

83 

v.  Jolks 

376. 

Reese  v.  Chilton 

67 

v.  Rivers 

220?* 

v.  Reese 

189 

v.  Sneed 

232 

Reeves  v.  Reeves 

21 

v.  Thayer 

177 

lxvi 


TABLE   OF   CASES. 


Roach  v.  Garvin 

v.  Quick 
Roadcap  v.  Sipe 
Robalina  v.  Armstrong 
Robb  v.  Brewer 

v.  Cutler 
Robb's  Appeal 
Robbins  r.  Eaton 

v.  Mount 
Roberts,  Matter  of 

r.  Coates 

v.  Coleman 

v.  Dixwell 

v.  Frisby 

v.  Kelley 

v.  Morrin 

v.  Place 

v.  Polgrean 

v.  Sacra 

v.  Spicer 

v.  Wiggin 
Robertson  v.  Cole 

v.  Cow  dry 

v.  Lyon 

v.  Norris 

v.  Robertson 

v.  State 

v.  Wilburn 
Robeson  v.  Martin 
Robinson  r.  Burton 

v.  Cone 

v.  Coulter 

v.  Frost 

v.  Gee 

v.  Hersey 
v.  Hoskin9 

? .  ( )'Xeal 

v.  Pebworth 

v.  Robinson 
v.  Weeks 
v.  Zallinger 
Robison  v.  Gosnold 

17.  Robison 
IJ'.bson  r.  Osborn 
Rob;  v.  Phelon 
Roche  '•.  Waters 


SECTION 

313,  116,  317  a,  332 


416 

75 

278  a 

154 

407 

53 

441 

423 

375 

370 

272 

107 

190 

71 

382 

86 

87 

343 

105 

440 

24 

27 

293 

90 

217 

26,  27 

58 

388 

262 

429 

403,  405 

363 

209 

343,  351 

435 

17,  136 

353,  386 

94,  272,  354,  384 

403,  409,  442 

300,  316 

66,67 

53,  58 

449 

192 

361 


Rogers  v.  Smith 

v.  Turner 

v.  Wolfe 
Rogers  Man.  Co.  v.  Rogers 
Rohrheimer  v.  Winters 
Roll  v.  Roll 


SECTION 

258 
241 
172 
477 
279 
218 


Rockfort  >-.  Fitzmaurice  182 

Rochford  Bank  v.  Gaylord  1 L6 

rs  v.  Dill  356 

.  Lees  428 

Roi   i    Deming  260 

-  v   Blackwell  3S0 

- .  Ilri^htman  175 

r.  Brooks  89 

r  <  unniu^ham  185 

v.  Dill  863 

-  tlopkins  377 

-  McLean  329 
v.  Millard  27:5 
r.  Pike  County  Bank  88 
v.  Honors  112 


Rollins  v.  Marsh  321,  337,  343,  344 

Rooke  v.  Kensington  (Lord)  183 
Rooney  v.  Milwaukee  Chair  Co.       262 

Roosevelt  v.  Ellithorp  200 

Root  v.  Stevenson  424 

Roper's  Trust,  In  re  239 

Roscoe  v.  McDonald  338 

Rose  v.  Brown  188 

v.  Cobb  350 

v.  Gill  350 

Roseborough  v.  Roseborough  338 

Ross  v.  Ewer  139 

v.  Ross  68,  232 

v.  Singleton  59 
v.  Southwestern  Railroad  303,  329 

v.  Winners  57 

Ross's  Trust,  In  re  110 

Roth's  Estate  388 

Roundy  v.  Thacher  445 

Routh  v.  Howell  352 

Rovve  v.  Chichester  87,  440 

t\  Rowe  137 

Rower  v.  Hopwood  433 

Rowland  v.  Jones  448 

v.  Plummer  190 

Rowly  v.  Adams  93 

v.  Unwin  141 

Rowney's  Case  89 

Royer's  Appeal  347,  348 
Royston  v.  Royston  98, 337,339, 373,  376 

Ruchisky  v.  De  Haven  404,  407 

Ruddock  v.  Marsh  72 

Rugh  v.  Ottenheimer  12,  114 

Rumfelt  v.  Clemens  150 

Rummell  v.  Delworth  461 

Rumney  v.  Keyes  65,  237 

Rundell  v.  Keeler  411 

Runkle  v.  Gale  373 

v.  Runkle  42 

Runyon  v.  Snell  155 

Ruscomhe  p.  Hare  209 

Rush  v.  Van  Vacter  248 
v.  Vought                    154,  267,  280 

v.  Wick  402,  415 
Russel  r.  People's  Saving  Bank        145 

Russell  ".  Brooks  80,  81 

v.  Coffin  319 

v.  Russell  356 

v.  St.  Aubyn  182 

Russell's  Appeal  183 

Rust  v.  Van  v rack  250 

Ruthin g ton  v.  Temple  279 

Rutlidge  >\  Carruthers  225 

Ryall  v.  Kennedy  230 

Ryan  v.  Madden  77 


TABLE   OF   CASES. 


lxvii 


Ryder,  In  re 

v.  Bickerton 

v.  Hulse 
Ryland  v.  Wombwell 

S. 

Sabel  v.  SlingluS 

Sackett's  Estate 

Sadler  v   Robinson 

Sage  v.  Hammond  227  a,  367, 

Sale  v.  Saunders 
Salinas  v.  Bennett 
Salisbury  v.  Van  Hoesen 
Sallee  i\  Arnold 
Saltmarsh  v.  Candia 
Sammis  v.  McLaughlin 
Sampson,  Re 
Sams  v.  Stockton 
Sanders  v.  Ferguson 

v.  Millers 

v.  Rodney 
Sanderson  v.  Robinson 

v.  Sanderson 
Sandiland,  Ex  parte 
Sanford  v.  Augusta 

v.  Lebanon 

v.  Pollock 
Sapp  v.  Newson 
Saratoga  Co.  Bank  v.  Pruyn 
Sargeant  v.  Fuller 

v.  Mattliewson 

v.  Wallis 
Sartoris,  Goods  of 
Sasscer  v.  Walker 
Satterfield  v.  John 
Saul  v.  His  Creditors 
Saum  v.  Coffelt 
Saunderson  v.  Marr 

v.  Saunders 
Savage  v.  Davis 

v.  Dickson 

v.  Sauer 
Savery  v.  King 
Saville  v.  Sweeney 
Sawyer  v.  Baker 

v.  Cassell 

v.  Knowles 
Sayre  v.  Weil 
Scanlan,  Re 
Scarlett  v.  Snodgrass 
Scarritt,  Re 
Scawen  v.  Blunt 
Schaffer  v.  Lavretta 

v.  Luke 

v.  Reuter 

v.  State 
Schcel  v.  Eidman 
Schiffer  r.  Pruden 
Schindel  v.  Schindel 


SECTION 

SECTION 

241 

Schlosser's  Appeal 

58 

140 

Schineltz  v.  Garey 

7 

114,  198 

Schmidt  v.  Holtz 

121 

411,412 

v.  Milwaukee,  &c.  R. 

R.  Co. 

v.  Schmidt 

120  a 

Schmitheimer  v.  Eiseman 

96 

421,  447 

Schneider  v.  Starke 

89 

90,  02 

Schnuckle  v.  Beirman 

241,  260 

290 

Schoch  v.  Garrett 

273 

446 

Schoenberg  t\  Voight 

252  a 

373,  376, 

Scholes  v.  Murray  Iron  Works           37 

382 

School  Directors  v.  James 

334 

89 

School  District  v.  Bragdon 

423 

408 

Schreyer  v.  Scott 

186, 

187,  188 

376 

Schrimpf  r.  Settegast 

273,  275 

82 

Schroeder  v.  Filbert 

249 

77 

v.  Loeber 

119 

167 

Schuencker  v.  Strong 

424 

399 

Schullhofer  v.  Metzger 

61 

411 

Schultz  v.  State 

53 

371,  377 

Sehumbert,  Ex  parte 

248 

174,  183 

Scobey  v.  Gatio 

306, 

317,377 

216 

Scott  v.  Buchanan 

403,  439 

183 

t\  Freeland 

386,  389 

316 

v.  Gamble 

86 

48 

v.  Hillenberg 

225 

78 

v.  Hudson 

168 

237 

v.  Paquet 

18 

155 

v.  Porter 

448 

27 

v.  Sebright 

23 

143 

v.  Shafeldt 

23,  24 

449 

v.  State 

388 

260 

v.  Watson 

423 

361 

v.  White 

268 

329 

Scott's  Account,  In  re 

377 

366 

Scott's  Case 

324 

388 

Scott's  Estate 

217,  218 

393 

Scran  ton  v.  Stewart     96, 

405,  41 

416 

Scrutchfield  v.  Sauter 

119 

458 

Scrutton  v.  Pattillo 

83 

44 

Seaborne  v.  Maddy 

241 

58 

Seager  v.  Shigerland 

261 

343 

Seaman,  Matter  of 

370 

258,  262 

v.  Duryea 

372 

271 

Searey  v.  Hunter 

414 

77 

Sears  v.  Giddey 

199 

126 

v.  Terry 

303,  308 

367 

Seaton  v.  Benedict 

63,64 

381 

Seaver  v.  Adams 

41 

119 

Seaverns  v.  Gertie 

303,  308 

288,  340 

Seavey  v.  Seavey 

269 

148 

v.  Seymour 

420 

251 

Sebastian  v.  Bryan 

367 

83 

Second  Nat.  Bank  v.  Merrill 

2G9 

405 

Segelkin  v.  Meyer 

450 

361  a 

Seguin  v.  Peterson 

253,  266 

191 

Seguin's  Appeal 

375 

,  376,  386 

21 

Seigler  v.  Seigler 

374 

377 

Seiler  v.  People 

50 

221 

Seilheimer  v.  Seilheimer 

23 

6(i 

Seitz  v.  Mitchell 

187 

lxviii 


TABLE   OF   CASES. 


SECTION 

SECTION 

Seitz's  Appeal 

274 

Sherman  v.  Wright 

308, 

•62o 

Selby  v.  Selby 

311 

Sherry  v.  Sansberry 

3»y 

Selden  v.  Bank 

115 

Sherwood  v.  Sherwood 

1*0 

Selden's  Appeal 

255 

v.  Smith 

272 

Self  v.  Taylor 

444 

Sheton  v.  Smith 

367 

Sellars  v.  Kinder 

262 

Shields  v.  Keys 

148 

Selover  v.  Commercial  Co. 

121 

Shipley  v.  Bunn 

438 

Senft  v.  Carpenter 

38 

Shipman  v.  Horton 

409 

446 

Senneman's  Appeal 

332 

381 

Shipp  v.  Browmar 

133 

Sergent  v.  Sergent 

2206 

516 

v.  Dowmar 

136 

Serle  v.  St.  Elroy 

398 

v.  Wheeless 

361 

Serok  v.  Kattenberg 

75 

Shippen's  Appeal 

155 

Serres  v.  Dodd 

77" 

Shirley,  Ex  parte 

133 

Sessions  17.  Kell 

301 

v.  Shirley                        82 

125 

137 

v.  Trevitt 

53 

Shollinberger's  Appeal 

376 

Sewall  v.  Roberts 

232 

Shook  v.  State 

329 

Seward  v.  Jackson 

270 

Short  v.  Battle                     124, 

134 

137 

Sewell  v.  Sewell 

441 

446 

v.  Moore 

124 

Sexton  v.  Wheaton 

186 

v.  Robertson 

402 

Shafer  v.  Ahalt 

77 

v.  Shropshire 

435 

Shafftner  v.  Briggs 

356  a 

363 

Shorter  v.  Frazer 

385 

Shakespeare  v.  Markham 

273 

274 

v.  Williams 

303 

Shallcross  v.  Smitb 

58 

Shoulters  v.  Allen 

380 

Shalterburg,  Earl  of,  v.  Ed 

mond- 

Showers  v.  Robinson 

230 

son 

83 

352 

Showman  v.  Lee 

157 

v.  Lady  Hannans 

287 

Shrewsbury  v.  Shrewsbury 

263 

Shanks  v.  Seamonds 

360 

Shroyer  v.  Richmond 

293, 

366 

Shannon  v.  Canney 

155 

Shuford  v.  Alexander 

427 

v.  Cropsey 

273 

Shumaker  v.  Johnson 

95 

Sharp  v.  Findley 

449 

Shuman  v.  Shuman 

225 

v.  Robertson 

402 

Shumard  v.  Phillips 

363 

Sharpe  v.  Foy 

174 

Shurtleff  v.  Rile 

335 

350 

v.  .MePike 

155 

Sinister  v.  Perkins 

366 

Shartzner  v.  Love 

58 

Shute  v.  Dorr 

267 

Shaw  v.  Bates 

854 

Shuttlesworth  v.  Hughey 

450 

v.  Coble 

374 

Shuyder  v.  Noble 

136 

v.  Coffin 

424 

Sicliel  v.  Lambert 

29 

v.  Emery 

72 

Sickles  v.  Carson 

23 

/-.  Manchester 

187 

Sikes  v.  Johnson 

423 

v.  Partridge 

89 

v.  Truitt 

366 

v.  Shaw 

3G 

350 

Sillings  v.  Baumgarden 

343 

/•.  Steward 

88 

Silvens  v.  Porter 

166 

167 

v.  Thompson 

67 

Silver  v.  Martin 

482 

Sheahan  v.  Wayne 

347 

352 

Simes  v.  Rockwell 

153 

Shearman  v.  Aikens 

222 

Simmons  v.  Almy 

343 

v.  Angel 

281 

v.  Goodell 

453 

Sheldon  v.  Newton 

439 

v.  McElwain 

64 

188 

Sbelton  '•.  Hadlock 

197 

Simins  v.  Norris 

344 

r.  Springett 

241 

Simon  v.  Jones 

399 

Slunk  /'.  Mingle 

277 

Simons  v.  Howard 

106 

i  '.  Bevins 

270 

Simpson  v.  Gonzales 

316 

319 

<•.  Pratt 

1ST 

v.  Graves                       174, 

175 

186 

Shepherd  v.  Eva  n 

843 

v.  Grayson 

261 

Shephi  rd  v.  McKoul 

61 

v.  Simpson 

218 

Sheppard  v.  Starke 

57 

Sims  e.  IJnrdoner 

447 

Sherburne  v.  Bartland 

207  a 

v.  Everhardt    9G,  97,  409, 

426, 

447, 

Sherlock  r.  Kirmncl 

252, 

262  a 

477 

Sherman  i    Ballou 

881 

v.  Rcnwick 

329 

-    Brewer 

382 

v.  Rickets             117,  189 

190 

191 

-    Rider 

168 

?•.  Smith 

447 

o.  Hannibal 

427 

v.  Spaulding 

93 

TABLE   OF    CASES. 


lxix 


Singer  Manuf.  Co.  v.  Lamb  43S 

v.  Rook  150,  loo 

Singleton  v.  Love  385,  386,  389 

Sinklear  y.  Emert  413 

Sipley  v.  VVass  192 

Siter  v.  McClanachan  91,  92,  94 

Skean  v.  Skean  42 

Skelton  v.  Ordinary  347 

Skillman  v.  Skillman    82,  162,  173, 188 

Skinner,  Ex  parte  246 

v.  Tirrell  61 

Skogland  v.  Street  R.  79 

Skottowe  v.  Young  231 

Shinning  v.  Style  161,  191 

Slanter  v.  Favorite  358,  374 

Slatterly  v.  Smiley  316 

Slaughter  v.  Cunningham  405,  407 

v.  Glenn  117 

Slaymaker  v.  Bank  83 

Sledge  v.  Clopton  123 

Sleight  v.  Read  114 

Sloan  v.  Williams  213 

Sloper  v.  Cotrell  107 

Slowcomb  v.  People  261 

Sluman  v.  Wilson  282 

Smalley  v.  Anderson  77 

Smalman  v.  Agborow  90 

Smiley  v.  Meyer  168 

v.  Smiley  73 

Smilie's  Estate  83 

Smith  v.  Abair  82,  100 

v.  Allen  212 

v.  Angell  343 

v.  Bates  316,317  a 

v.  Bean  343 

v.  Bowen  432 

u.  Bragg  249 

v.  Chappell  173 

v.  Chirred  174 

v.  Clark  391 

v.  Davenport  263 

v.  Davis  61,  372 

v.  Derr  231 

v.  Dibrell  352 

v.  Doe  148 

v.  Evans  446 

v.  Gray  439 

v.  Henry  120  a 

v.  Hestonville  R.  259 

v.  Hewett  120  a 

v.  Karr  423 

v.  Kelly  435 

i'.  King  433 

v.  Knowles  218 

v.  Knowlton  268 

v.  Lapeen  372 

v.  Low  438 

v.  MeGuire  94 

v.  Moore  177,  180 

v.  Oliphant  414 

v.  Parked  439 


8ECTIOS 

Smith  !».  Philbrick  :>'*> 

v.  Railroad  402,  107 

v.  Reduf  l"ii i 

v.  Rogers  273 

v.  Smith  18,23,  210,  252a,  272,  353 

v.  Starr  127 

v.  State  278  a 

v.  Thompson  168 

v.  Turley  119 

v.  Weeks  167 

v.  Young  413 

Smith's  Appeal  337 

Smodt  v.  Lecatt  222 

Smout  v.  Ilberry  212 

Smyley  v.  Reese  199 

Smyth  v.  State  30 

Snavely  v.  Harkrader        316,  329,  354, 

376 

Sneathen  v.  Sneathen  21,  441 
Snedicker  v.  Everingham      252  a,  254, 

267  a 

Snell  v.  Elam  388 

Snelson  v.  Corbet  208 

Snider  v.  Ridgway  58 

Snodgrass's  Appeal  127,  351 

Snook  v.  Sutton  350 

Snover  v.  Blair  337 

v.  Prall  339 

Snow  v.  Cable  162 

v.  Paine  155 

v.  Sheldon  166 

Snowhill  v.  Snowhill  330 

Snyder  v.  People  51,  122 

v.  Webb  173 

Sombie's  Case  311 

Somers  v.  Pumphrey  94 

Somerville  v.  Somerville  230 

Somes  v.  Skinner  343 

Sommers  v.  Boyd  312 

Sottomayor  v.  De  Barros  16 

Soule  v.  Bonney  23 

Soulliar  v.  Kern  433 

Soutball  v.  Clark  388 

Southard  v.  Plummer  114 
Southwestern  R.  v.  Chapman  255a,  343 

Southwick  v.  Evans  375 

v.  Southwick  36 

Southworth  v.  Packard  77 

Spafford  r.  Warren  150 

Spann  v.  Jennings  127 

Sparhawk  v.  Allen  348 
v.  Buell's  Adm'r          238,  368,  391 

Sparkes  v.  Bell  57,  134 

Spathe's  Estate  367 

Spaulding  v.  Brent  388 

v.  Day  124 

Spaun  v.  Collins  305 

Spear  v.  Cummings  260 

v.  Spear  354 

Spears  v.  Snell  250 

Spece,  In  re  303 


lxx 


TABLE   OF   CASES. 


SECTION 

SECTION 

Speer  v.  Tinsley 

oor. 

Starkey,  Ex  parte 

339 

v.  Woodsworth 

337 

v.  Starkey 

36 

Speight  v.  Knight 

308 

317 

Starling  v.  Balkum 

337 

v.  Olivier 

201 

Starr  v.  Peek 

226 

Spelman  v.  Dowse 

301 

Starrett  v.  Jameson 

373,  375 

v.  Terry                        343, 

348 

350 

v.  Wright 

416 

Spence,  Re 

288 

v.  Wynn 

226 

Spencer  v.  Carr 

405 

State  v.  Alford 

244 

v.  Earl  of  Chesterfield 

315 

v.  Anderson 

252 

v.  Houghton 

367 

v.  Atkins 

377 

v.  Lewis 

89 

v.  Baird 

248 

v.  Parsons 

158 

v.  Banks 

248 

v.  Spencer 

181 

v.  Barker 

392 

v.  Storrs 

72 

v.  Barney 

248 

Spencer's  Case 

304 

v.  Barrett 

251 

Sperry  v.  Dickinson 

152 

v.  Barton 

395 

v.  Fanning 

344 

v.  Beatty 

279 

v.  Haslam 

114 

211 

v.  Belton 

398 

v.  Spicer 

21 

v.  Bennett 

53 

Spicer  r.  Early 

443 

v.  Binder 

437 

Spier's  Appeal 

219 

v.  Bolte 

372 

Spinning  v.  Blackburn 

151 

v.  Brady 

17 

Spirett  v.  Willows 

105 

v.  Branch 

377 

Spooner  v.  Reynolds 

154 

v.  Breice 

261 

Sprattle  v.  Sprattle 

249 

v.  Brown 

53 

Spring  v.  Hydiff 

443 

v.  Bunce 

392,  SC  3 

v.  Kane 

361 

v.  Burton 

244 

?•.  Wood  worth 

337 

v.  Camp 

50 

Springer  v.  Berry 

150 

15G 

v.  Cayce 

343 

Springfield  v.  Bethel 

273 

v.  Clark 

338,  360 

Springfield  Inst.  v.  Copeland 

119 

v.  Cleaves 

50 

Staat  v.  Van  Sickel 

150 

v.  Clotter 

256 

Stables,  In  re 

238 

v.  Cook 

337 

v.  Cook 

388 

v.  Craton 

45 

Stack  v.  Cavanaugh 

446 

v.  Davis 

23 

Stacker  v.  Whitlock 

269 

r.  Dillon 

395 

St.  Ferdinand  Academy  v.  Bobb 

273 

v.  District  Board 

235 

St.  Georpe  v.  Wake 

181 

v.  Dole 

30 

St.  John  v.  St.  John 

21G 

v.  Driver 

48 

St.  John's  Parish  v.  Bronson 

•61 

v.  Engelke 

317 

St.  Louis  I?,  v.  Foltz 

157 

r.  Fleming 

388 

v.  Henson 

162 

v.  Gordon 

260 

v.  Higgins 

445 

v.  ( Irass 

373 

Stafford  Bank  v.  Underwood 

152 

v.  Greensdale 

345,  386 

Staley  v.  Barhite 

177 

v.  Greenside 

345 

Stall  v.  Macalaster 

361 

v.  Grisby 

248 

v.  Meek 

72 

v.  Gunzler 

487 

Stall  wood  v.  Tredger 

29 

v.  Ilairston 

16 

Stammera  v.  Macomb 

64 

v.  Hamilton  County 

350 

Standard  Paint  Co.  v.  Mining  Co. 

87 

v,  Harriem 

353 

Standeford  v.  Devol 

83 

v.  Harris 

17 

Standford  v.  Marshall 

138 

r.  Hays 

208 

V.  Mur[)hy 

53 

v.  Henderson 

377 

Stanley's  Appeal 

352 

v.  Henry 

388 

Stangbury  v.  Bertron 

267a 

v.  Herman 

225 

Stanton  v.  KirBCh 

120a 

v.  Hewitt 

336 

v.  Wilson                        237 

,241 

,411 

r.  Hodgskins 

26,31 

Staple's  Aj>peal 

199 

v.  Hooper 

17 

Stapleton  o.  Croft 

53, 

v.  Housekeeper 

77 

Stark  o.  Oamble 

864 

,  :;ss 

v.  Hughes 

377 

V.  JIarr i.scjii 

89 

i'.  llulick 

115 

TABLE   OF   CASES. 


lxxi 


SECTION 

State  v.  Hull 

377 

v.  Hyde 

308,  335 

v.  Jackson 

17 

v.  Joest 

313 

v.  Jolly 

50 

v.  Jones         244, 

265,  324 

,  367,  372 

v.  Kennedy 

1(5 

i?.  King 

248 

v.  Kluseman 

395 

v.  Lavin 

225 

v.  Learnard 

395 

v.  Leole 

386 

v.  Lewis 

308,  320 

v.  Libbey 

251 

v.  Ludwick 

84 

v.  Mabrey 

45 

v.  Martin 

366 

v.  McKown 

316 

v.  Miller 

26,  27 

v.  Morrison 

352,  353 

v.  Murray 

384 

v.  Oliver 

44,48 

v.  Page 

367 

v.  Parkerson 

50 

v.  Paul's  Exec'r 

377 

v.  Pitts 

161 

v.  Plaisted 

404 

405,  437 

v.  Potter 

50 

v.  Ransell 

60 

v.  Rhodes 

42,  44 

v.  Rice 

260 

v.  Richardson 

248,  250 

v.  Roach 

337 

v.  Roche 

337 

v.  Scott 

245,  251 

v.  Shackleford 

367 

v.  Shoemaker 

279 

v.  Shumpert 

225 

v.  Slauter 

377 

v.  Smith 

248,  251 

v.  Steele 

360 

v.  Stewart 

370,  450 

v.  Strange 

372,  377 

v.  Straw 

85 

v.  Sutcliffe 

237 

v.  Taylor 

207a 

v.  Throw 

357 

v.  Tice 

395 

v.  Toney 

395 

v.  Tunnel 

373 

v.  Wax 

395 

v.  Wheeler 

373 

v.  Whittier 

404 

v.  Williams 

367 

v.  Wilson 

53,85 

v.  Winkley 

39 

v.  Womack 

374 

State,  ex  rel.  v.  Paine 

248 

State  Nat.  Bank  v.  Robidoux 

95 

Staton  v.  New 

94 

Stead  v.  Clay 

107 

Stean  v.  Freeman 
Stearns  v.  Weathers 
Stecket's  Appeal 
Steckman  v.  Schell 
Steed  v.  Cragh 
Steedman  v.  Poole 
Steel  v.  Steel 
Steele,  Re 

v.  Steel 

v.  Thacher 
Steffey  v.  Steffey 
Stein  v.  Bowman 
Steinburg  v.  Meany 
Steinhauser  v.  Spraul 
Stelz  v.  Shreck 
Stemm's  Appeal 
Stenman  v.  Muber 
Stephens  v.  Hannibal  R. 

v.  James 
Stephenson,  Goods  of 

v.  Hall 

v.  Osborne 

v.  State 

v.  Westfall 
Sterling  v.  Adams 

v.  Potts 

ii.  Simmons 
Stevens  v.  Parish 

v.  Reed 

v.  Savage 

v.  Stevens 

v.  Tucker 
Stevenson  v.  Belknap 

v.  Bruce 

v.  Gray 

v.  Hardy 

v.  State 
Stevenson's  Appeal 
Stewart,  In  re 

v.  Bailey 

v.  Baker 

v.  Ball 

v.  Fellows 

v.  Menzies 

v.  Mulholland 

v.  Stout 
Stickney  v.  Stickney 
Stidham  v.  Matthews 
Stiff  v.  Keith 
Stigall  v.  Turney 
Stigler  v.  Stigler 
Stickman  v.  Dawson 
Stiles  v.  Granville 

v.  Stiles 
Stilley  v.  Folger 
Stillman  v.  Ashdown 

v.  Young 
Still  well  v.  Adams 
Stilphen  v.  Stilphen 
Stinson  v.  Prescott 
Stock  v.  McAvoy 


8ECTIOS 

435,  445 
114 
277 
188 

88 
110 
268 
371 
112,  124,  269 
260 

94 

53 

53 
492 
193 
352 

89 
492 
306,  329,  334 
196,  325 
260 
218 
395 
391 
426 
212 

83 
150 
158 
390 
220  I, 
367 
261 
343 

29 

61 
369 
372 

86 

361 

445 

120  a 

120  a 

26,  27 

180 

167 

53 

58,94,  150 

402 

248 

337 

425 

267a 

190 

173 

17.', 

324 

58,  143,  148 

114 

212 

272 


Ixxii 


TABLE   OF   CASES. 


Stockton  v.  Farley 

v.  Wooley 
Stof  hof  v.  Reed 
Stogdon  v.  Lee 
Stokes  v.  Brown 

v.  Hatcher 

o.  Shannon 
Stoltz  v.  Daering 
Stone  v.  Dennie 

v.  Dennison 

v.  Dorrett 

?•.  McNair 

v.  Stone 

v.  Wood 
Stoolfas  p.  Jenkins 
Storey's  Appeal 
Storke  v.  Storke 
Story  v.  Johnson 

v.  Marshall 

v.  Perry 

v.  Walker 
Stoughton's  Appeal 
Stout  v.  Merrill 

v.  Perry 
Stowers  v.  Hollis 
Straino  v.  Wright 
Strangeways  v.  Robinson 
Stratton  v.  Stratton 
Stratton's  Case 
Strickland  v.  Bartlett 

v.  Holmes 
Stringer  v.  Life  Ins.  Co, 
Stripling  v.  Ware 
Strode  v.  Magowan 

17.  Strode 
Strohl  v.  Levan 
Strong  v.  Beronjon 

v.  Birchard 

v.  Foot 

17.  Marcy 

v.  Moe 

V.  Smith 
Strong,  Catherine,  Re 
Stroop  17.  Swarts 
Strother  v.  Law 
Stroup  v.  State 
Strouse  v.  Den  man 

v.  Leipf 
Stuart  v.  Kirkwall  (Lord) 
Stul. lis  17.  Dixon 

Studwell  17.  Shapter 

StultZ  17.  Stultz 

Stumpf  v.  Stumpf 

Stlllrip-   (7,   Stllin|i< 

Sturbridge  17,  Franklin 
Sturgia  <•  Champneya 

i    '  orp 
Bturtevanl  v.  Starin 
Stutclv  '■  Harrison 
Sn.-iv  i7.  '  laffe 

Suddcrth  v.  M<:<  '<>u\ha 


SECTION 

SECTIOS 

58 

Sullivan  v.  BlackweR. 

388 

206 

v.  Horner 

242 

374 

v.  Sullivan 

24,  53 

110,  135 

Sullivan's  Case 

305 

435 

Sumner  v.  Conant 

94 

420 

v.  Howard 

361,  385 

148 

v.  Sebec 

267  a 

231 

Sutnn  v.  People 

279 

114 

Sutherland  v.  Goff 

343 

443 

Sutpher  v.  Fowler 

313 

300,  316 

Sutton  v.  Aiken 

146 

61 

v.  Chetwynd 

174 

265 

v.  Hoffman 

261 

194 

i'.  Warren 

32  a 

426 

Swafford  v.  Ferguson 

405,  409 

272 

Swain  v.  Duane 

117 

340 

Swan  v.  Dent                        342 

353,  382 

438 

v.  Wiswall 

94 

187 

Swartwout  v.  Oakes 

295 

413 

v.  Swartwout 

318 

313 

Swasey  v.  Vanderheyden 

414 

350,  356 

Sweet  17.  Sweet 

218,  316 

446 

Swift,  Be 

316 

116 

v.  Bennett 

414 

419 

v.  Kelly 

24 

446 

v.  Law  lor 

258 

278 

v.  Wenman 

221 

183 

Swindall  v.  Swindall 

354 

343 

Swing  v.  Woodruff 

58 

175 

Switzer  v.  Kee 

43 

367 

v.  Ker 

269 

437 

v.  Switzer 

218 

245 

Sword  v.  Keith 

251 

225 

Sykes  v.  Chad  wick 

190 

21 

Sym's  Case 

88 

263 
343 
303 
413 

Synge  v.  Synge 

173 

T. 

450 

T.  i?.  D. 

20 

338,  370 

T.  v.  M. 

20 

83 

Taff  17.  Hoomer 

307 

399 

Taft  v.  Sergeant 

435 

75 

Talbot  17.  Earl  of  Shrewsbury 

235,  334 

95 

17.  Hunt 

226 

311,  377 

17.  Marshfield 

163 

301 

17.  Provin 

448 

75,  89 

Tallinger  v.  Mandeville 

218 

134 

Tallmadge  17.  Grannis 

89 

2;?  7 

Tallman  v.  Jones 

167 

425 

Tanham  v.  Nicholson 

271 

221 

Tanner  v.  Skinner             238, 

:v,i.  :;72 

137 

Tarbell  v.  Tarbell 

173 

150 

Tarble,  Matter  of, 

420 

r,<; 

Tasker  v.  Stanley 

41,  52 

85 

Taic  i7.  Pene 

225 

131 

r.  Stevenson 

311 

69 

p.Tate 

415 

807 

Tatum  17,  ETolliday 

385 

169 

Taunton  v.  Plymouth 

267  a 

868 

Tawney  v.  Crowther 

179 

TABLE   OF   CASES. 


lxxii'i 


SECTION 

Taylor,  In  re                        249 

,  29'J,  300 

r.  Beniiss 

345 

?■.  Crocker 

402 

r.  Dansby 

402 

v.  Glanville 

138 

v.  Hite 

347,  352 

v.  Jeter 

230 

v.  Kilgore 

343 

v.  Rountree 

114 

v.  Shelton 

64 

v.  Staples 

270 

v.  Stone 

124 

v.  Taylor 

388 

Teagarden  v.  McLaughlin 

263 

Teal  v.  Sevier 

232 

Tealie  v.  Hoyt 

386 

Teasdale  v.  Braithwate 

178 

Tebbetts  v.  Hapgood 

63 

Tebbs  v.  Carpenter 

352 

Teller  v.  Bishop 

187,  188 

Temple  v.  Hawley 

399 

Templeton  v.  Stratton 

237 

Tenbrook  v.  M'Colin 

320 

Tennant  v.  Stoney 

124 

Tennessee  Hospital  v.  Fugna 

367 

Tennessee  Man. Co. r.  James  252  a,  267a 

Tenney  v.  Evans 

344,  351 

Terry  v.  Belcber 

53 

v.  Dayton 

272 

v.  McClintock 

435,  438 

v.  Tuttle 

363 

Terry's  Appeal 

212 

Texas  R.  i\  Brick 

429 

v.  Crowdere 

259 

Teynham's  (Lady)  Case 

235,  305 

Tliacher  v.  Phinney 

89 

Thacker  v.  Henderson 

347 

Thackeray's  Appeal 

350 

Thatcher  v.  Dinsmore 

343 

Thaw  v.  Ritchie 

363 

Thayer  v.  Goff 

93 

v.  White 

241 

Thing  v.  Libbey 

414,  435 

Third  Nat.  Bank  v.  Gunther 

168 

Thoenberger  v.  Zook 

94 

Tholey's  Appeal 

26,  29 

Thomas,  In  re 

305,  306 

v.  Bennett 

343 

v.  Burrus 

316 

v.  Desmond 

168 

v.  Dike 

443,  449 

v.  Harkness 

127,  190 

v.  Spencer 

110 

v.  Strickland 

437 

r.  Thomas 

61,  237 

v.  Williams 

366,  443 

v.  Wood 

90,  92 

Thomason  v.  Boyd 

435 

Thompson  v.  Boardman 

350 

v  Brown 

356 

v.  Dorsey 

241 

SECTION 

Thompson  v.  Gaillard  439 

v.  Harvey  68 

v.  No  ward  260 

v.  Ketcham  393 

v.  Lay  435 

v.  McKusick  123 

v.  Ross  261 

v.  Thompson  61 

v.  Weller  148 

v.  Young  261 

Thomson  v.  Thomson  290 

Thorndike  v.  Hinckley  381 

Thome  v.  Dillingham  77 

i'.  Kathan  66 

Thornton  v.  Grange  273 

v.  McGrath  361 

Thorpe  v.  Bateman  273 

v.  Shapleigh  66,  71 

v.  Thorpe  22 

Thrall  v.  Wright  412 

Throgmorton  v.  Davis  75 

Thrupp  v.  Fielder  436 

Thrustout  v.  Coppin  87 

Thurber  v.  Sprague  272 

Thurlow  v.  Gilmore  433 

Thurmond  v.  Faith  364 

Thurston,  Be  221,  354 

v.  Holbrook's  Estate  308 

Tibbs  v.  Brown  77 

Tiemeyer  v.  Turnquist  144  a 

Tifft  ;;.  Tifft  263,  423 

Tillexan  v.  Wilson  208 

Tillinghast  i\  Holbrook  409 

Tillman  v.  Shackleton  164 

v.  Tillman  90,  92 

Tilloson  v.  M'Crullis  268 

Tillotson.  In  re  363 

Tilton  v.  Russell  413 

Timmins  >•.  Lacy  225 

Tinsley  v.  Roll  117 

Tipping  v.  Tipping  208 

Tipton  v.  Tipton  446 

Tobey  v.  Smith  58 

Tobin  v.  Addison  343 

v.  Wood  437 

Todd  v.  Clapp  169,  437 

v.  Lee  143,  164 

v.  Oviatt  202 

v.  Weber  279 

Toler  v.  Slater  90 

Tolland  v.  Stevenson  273 

Tompkins  v.  Tompkins  238,  241 

Tompson  v.  Hamilton  407 

Tong  v.  Marvin  304 

Tooke  v.  Newman  145 

Tornens  v.  Campbell  268 

Torrington  v.  Norwich  251 

Torry  r.  Black  343,  350 

v.  Frazer  353 

Tourville  v.  Pierson  94 

Towle  v.  Dresser  407,  446  a 


lxxiv 


TABLE   OP   CASES. 


SECTION 

420 
206 
118,  189 
424 
428 
241 


Towle  v.  Sawey 

v.  Swazey 

v.  Towle 
Towne  v.  Wiley 
Townley  v.  Chicago  R. 
Townsend  v.  Burnham 

v.  Downer  8 

v.  Kendall  328,  333 

Tracy  v.  Keith  58 

Trader  v.  Lowe  150,  389 

Trainer  v.  Trumbull  414  a 

Trapnall  v.  State  Bank  401 

Trask  v.  Stone  450 
Traver  v.  Eighth  Avenue  R.  R.       262 

Tremain's  Case  235,  340 

Tremont  v.  Mt.  Desert  269 
Trenton  Banking  Co.  v.  Woodruff    123 

Trevor  v.  Trevor  182 

Trieber  v.  Stover  167,  168 

Trimble  r.  Dodd  238,  376 

Triplett  v.  Graham  162 

Tripp  v.  Gifford  431,  450 

Tritt  v.  Colwell  83 
Tritt's  Adin'r  v.  Caldwell's  Adm'r     84 


Troutbeck  v.  Boughey 

105, 

106 

Trowbridge  v.  Carlin 

44 

Troxell  v.  Stoekbenger 

155 

Truebood  v.  Truebood 

406 

Trull  v.  Eastman 

272 

Truss  v.  Old 

321, 

343 

350 

Tubbs  v.  Gatewood 

94 

v.  Harrison 

237 

273 

Tucker  v.  Andrews 

181 

v.  Bean 

448 

v.  McKee 

337 

v.  Moreland 

407 

439 

440 

v.  State 

48 

Tudhope  v.  Potts 

373 

Tudor  r.  Samyne 

88 

'1  ugman  o.  Hopkins 

100 

Tugwell  v.  Scott 

281 

Tullett  v.  Armstrong  87, 

103, 

107, 

110, 

134 

139 

Tune  v.  Cooper 

82 

Tunison  v.  Chambly 

437 

v.   1  unison 

439 

Tunks  o.  Grover 

162 

Tupper  '■.  Caldwell 

412 

Turbeville  v.  Whitehouse 

413 

Tamer,  ///  re 

305 

1    >1  lina 

271 

v.  Cook 

53 

l .  ' 'nine 

83 

v.  Kelly               122 

123 

124 

186 

1  urner 

240 

'•.  Vaughan 

279 

Turner'i  (8ir  Edward)  Case 

88 

Turnley  i .  Booper 

186 

Turpin  v.  Turpin 

401 

402 

407 

Tunic  v.  Muncy 

80 

Tuieur  v.  Cliicago  It. 

242  b 

SBCTION 

Tuttle  v.  Chicago  R.  77 

v.  Detroit  R.  492 

v.  Hoag  166 

v.  Holland  64 

v.  Northrop  367 

Tweedale  v.  Tweedale  390 

Tyler  v.  Arnold  241 

v.  Burrington  273 

v.  Lake  105 

v.  Reynolds  232 

v.  Sanborn  34 

v.  Tyler  394 

Tyrrel  v.  Hope  105 

Tyrrell's  Case  161 

Tyson  v.  Latrobe  351 

v.  Sanderson  354,  368 

i>.  Tyson  22 

U. 

U.  v.  J.  20 

Uhl  v.  Commonwealth  50 

Uhrig  v.  Horstman  164,  166 

Ulrich  v.  Ulrich  269 

Underbill  v.  Dennis  304,  305 

Underbill  v.  Morgan  189 

Underwood  v.  Brockman  343 

Unger  v.  Price  188 
United  States  v.  Bainbridge  252  a,  256, 
401,  420 

v.  Green  248 

v.  Metz  267  a 

United  States  Bank  v.  Ennis  187 
Unity  &  Banking  Association,  In  re  403 

Updike  v.  Ten  Broeck  269 

Uransky  v.  Dry  Dock  R.  162 

Urbin  v.  Grimes  139 


V. 

Vaden  v.  Hance  272 

Vail  f.  Meyer  151 

v.  Vail  124 

v.  Winterstein  169 

Valentine  v.  Bell  64 

Valentini  v.  Canali  405 

Van  Arnam  v.  Ayers  41 

Van  Aernam  v.  Van  Aernam  225 
Van  Artsdalen  v.  Van  Artsdalen  298 
Vanderberg  v.  Williamson        366,  369 

Vanderheyden  v.  Mallory  128 
v.  Vanderheyden               375,  376 

Vandervoort  v.  Gould  115 

Vandervoort'a  Appeal  435 

Van  Donge  v.  Van  Donge  220 

Van  Doon  v.  Young  252 

Van  Duesco  v.  Van  Duesco  398 

Van  Dyke  v.  Wells  148 

Van  Epps  v.  Van  Dcusen  390 

Van  Horn,  Matter  of  388 

Van  Matre  v.  Sankey  230 


TABLE   OF   CASES. 


lxxv 


SECTION 

SECTION 

Van  Sclioyck  v.  Backus 

269 

Wales  v.  Newbould 

156,  190 

Van  Sittart  v.  Van  Sit  tart 

216 

251 

Walkenhout  v.  Lewis 

407 

Van  Valkenburg  v.  Watson 

241 

v.  Mulveean 

237 

Van  Zant  v.  Davies 

272 

Walker  v.  Armstrong 

183 

Vandewater  Re 

303 

305 

v.  Beal 

217 

Vane  v.  Smith 

424 

v.  Brown 

337 

v.  Vane 

280 

v.  Crowder 

339 

Vannerson  v.  Cheatham 

169 

v.  Davis 

424 

Varick  i«.  Edward 

272 

v.  Ellis 

440,  442 

Varney  v.  Young 

267 

268 

v.  Howard 

7 

Vartie  v.  Underwood              94,  95 

137 

t\  Laighton 

63,  69 

Vason  v.  Bell 

174 

v.  Reamy 

122 

Vaughan  o.  Parr 

437, 

439 

v.  Simpson 

61,  69 

v.  Vanderstegen 

133 

v.  Stringfellow 

217 

Veal  v.  Fortson 

402 

Walker  v.  Thomas 

378 

Veld  v.  Levering 

335 

v.  Walker 

83,  218,  272 

Vernon  v.  Marsh 

112 

Walker,  Anna,  Matter  of 

349 

Vidal  v.  Commajere 

232 

Wall  v.  Rogers 

104 

Villard  v.  Chorin 

338 

v.  Stan  wick           285, 

321,  325,  326 

Villareal  v.  Mellish 

245, 

287 

Wallace  v.  Brown 

361 

Vincent  v.  Parker 

89 

v.  Campbell 

306 

v.  Starkey 

343, 

366 

v.  Finberg 

143 

v.  State 

398 

v.  Holmes 

352 

v.  Walker 

95 

v.  Latham 

435,  439 

Vine  v.  Saunders 

75 

v.  Lewis 

239 

Violet  Nevin,  Re 

340 

v.  Morse 

388,  424 

Violet  Nevins,  Re 

305 

v.  Rowley 

167 

Viser  v.  Scruggs 

146, 

148 

v.  Wallace 

182 

Vizoreau  v.  Pegram 

133 

Waller  v.  Amistead 

388 

Voessing  v.  Voessing 

339, 

344 

v.  Campbell 

377 

Voltz  v.  Voltz 

389 

Wallingford  v.  Allen 

120,  191 

Voorliees  v.  Presbyterian  Church 

192 

Wallis  v.  Bardwell 

350,  412 

Voorliies  v.  Voorhies 

439 

440 

Walsh  v.  Powers 

138 

Voris  v.  State 

366 

367 

Walter  v.  Walter 

120 

Vossol  v.  Cole 

261 

262 

Walton  v.  Broad  us 

117 

Vreeland  v.  Ryno 

80 

v.  Erwin 

375 

v.  Vreeland 

118 

Wambold  v.  Vick 
Wann  v.  People 

252 
367,  376 

w. 

Waples  v.  Hastings 

406 

Ward,  Re 

338 

Wade,  Succession  of 

53 

v.  Dulaney 

18 

v.  Cantrell 

189 

v.  Roper 

240,  332 

v.  Labdell 

372 

388 

v.  Shallet 

188 

v.  State 

398 

v.  Thompson 

198,  200 

Wadsworth  v.  Connell 

299 

v.  Ward 

47,  246,  247 

Wagener  v.  Bill 

50 

Warden  v.  Jones 

175 

Wagmire  v.  Jetmore 

18 

Wardlaw  v.  Wardlaw 

388 

Wagoner  v.  State 

395 

Wardle  v.  Claxton 

105 

Wagstaff  t".  Smith 

105 

Ward  well  v.  Hofer 

329 

Wailing  v.  Toll 

413 

v.  Ward  well 

290,  299 

Wainwright  v.  Wilkinson 

406 

Ware  v.  Bruch 

437 

Wait  v.  Bovee 

193 

v.  Cartlidge 

431 

v.  Wait 

221 

v.  Coleman 

303 

Waite  v.  North  Eastern  R.  R 

Co. 

429 

v,  Gardner 

186 

Waithman  v.  Wakefield 

61 

v.  Palhill 

347,  357 

Wakefield  v.  Mackay 

23 

v.  Ware 

83,  313,  352 

Wakeman  v.  Sherman 

436 

v.  Wilson 

308 

Waldo  v.  Goodsell 

78 

Warfield  v.  Bobo 

380 

Waldron,  Case  of 

248 

v.  Fisk 

380 

v.  Waldron 

41 

Waring,  In  re 

39!) 

Wales  v.  Miner 

41 

v.  Darnall 

352 

Ixxvi 


TABLE   OF    CASES. 


Waring  v.  Waring 
Warlock  v.  White 
Warner  v.  Crouch 

v.  Heiden 
Warren,  Ex  parte 

v.  Haley 

v.  Halsey 

v.  Jennison 

v.  Ranney 

v.  Warren 
Warrender  v.  Warrender 
Warwick  v.  Bruce 

v.  Cooper 

v.  Hawkins 
Washband  v.  Washband 
Washburn  v.  Hale 

v.  Hammond 

v.  Sproat 
Waterbury  v.  Netherland 
Waterman  v.  Wright 
Waters  v.  Ebral 
Watkins,  Ex  parte 

v.  De  Armond 

v.  Lawton 

v.  Peck 

v.  Thornton 
Watson  v.  Broad  us 

v.  Cross 

v.  Hensel 

v.  Iliskamire 

v.  Robertson 

v.  Stone 

v.  Thurber 

v.  Warnock 

v.  Watson 
Watson's  (Miss)  Case 
Watt  v.  Algood 

v.  Watt 
Watts  v.  Ball 

v.  Cook 

v.  <  Iwen 

v.  Steele 

v.  Watts 
Waugh  v.  Emerson 
Waul  - .  Kirkman 
Way  v.  Peck 
Weaver  v.  Carpenter 

v.  Jones 
Webber  n.  Spannhake 
Webber's  Estate 
Weber  v.  I  tannibal 
Webster  v.  Bebinger 

v.  '  'onley 

v.  Helm 

v.  Hildreth 

v.  Webster 
W< r  'i  '■■  Beebe 

r     Elli( 

r.  Emerson 

Holmes 
i    Latham 


SECTION 

SECTION 

46 

Weeks  v.  Leighton 

268, 

443 

225 

v.  Merrill 

241 

94 

v.  Pacific  R,  R. 

429 

61 

Weir  v.  Marley 

251 

293 

Weisker  v.  Lowenthal 

64 

112 

Welch,  Re 

249 

124 

v.  Berry 

337 

203 

v.  Burris 

339 

190 

v.  Olmstead 

411 

41 

v.  Welch 

401 

32  a, 216,  218 

Weld  v.  Walker 

199 

432 

Weldon  v.  Keens 

305 

402 

v.  Little 

350 

105 

Wellborn  v.  Weaver 

77 

402 

Weller  v.  Baker 

89 

80 

v.  Sugget 

328 

188  a 

Wellesley  v.  Duke  of  Beaufort  237-! 

203 

288 

206 

v.  Wellesley 

235 

246 

373 

Wells  v.  Andrews 

303 

347 

v.  McCall 

129 

301,  326 

v.  Perkins 

273 

66 

v.  Thorman 

136 

453 

v.  Tyler 

83 

350 

v.  Wells 

391 

420 

Wells's  Estate,  In  re 

281 

124 

Wendell's  Lease 

311 

414 

Weringer,  Re 

199 

413 

West  v.  Erissey 

182 

187 

v.  Forsythe 

316 

,319 

90,92 

v.  Gruggs 

412 

353 

v.  Howard 

175 

137 

v.  Perry 

407 

,  435 

305,  307 

v.  Strouse 

261 

201 

v.  Walker 

179 

110 

v.  West 

353 

317,  329 

West  Land  Co.  v.  Kurtz 

303 

198 

Westbrook  v.  Comstock 

385 

201 

Westcott  v.  Hinckley 

61 

361 

Westerman  v.  Westerman 

53 

,  181 

225 

Westervelt  v.  Gregg 

114 

238 

Westgate  v.  Munroe 

143 

35 

Westmeath  v.  Westmeath 

216 

421 

Weston  v.  Stewart 

345 

7,  W 

Wlialen  v.  Olmstead 

256 

146, 148 

Wharton  v.  Macleugh 

411 

405,  406,  439 

v.  Markensie 

411 

,  413 

405,  lie 

Wheaton  v.  East 

405 

,439 

61 

v.  Phillips 

167 

352 

Wheeler  v.  llotchkiss 

221 

343 

Wheeler  Man'l'g  (Jo.  v.  Ahrenbeck  407 

886 

v.  Morgan 

72 

351 

Wheeling  v.  Trowbridge 

77 

136 

Wheelwright  v.  Greer 

279 

153 

Wlieldale  v.  Partridge 

367 

21 

Whichcote  v.  Lyle's  Ex'rs 

399 

438 

Wliipp  v.  State 

48 

843 

Whipple  v.  Dow 

239 

'.il 

v,  <;iles 

(il 

252",  260 

r.  Warren 

267 

11.; 

Whi taker's  Case 

313 

TABLE   OF    CASES. 


lxxvii 


Whitcomb  v.  Barre 

v.  Joslyn 
White  v.  Bettis 

v.  Bigelow 

v.  Branch 

v.  Campbell 

v.  Cox 

v.  Dance 

v.  Flora 

v.  Hildreth 

v.  Mann 

v.  McMett 

v.  Murtland 

v.  Nesbit 

v.  Oeland 

v.  Palmer 

v.  Parker 

v.  Pomeroy 

v.  Ross 

v.  Story 

i'.  Vassalborough 

v.  White 
White's  Appeal 
Whitehead  v.  Jones 
Whiting  v.  Dewey 

v.  Earl 

v.  Stevens 
Whitingham's  Case 
Whitman  v.  Delano 
Whitmarsh  v.  Robertson 
Whitney  v.  Beckwith 

v.  Dulch 

v.  Whitney 
Whittlesey  v.  Fuller 
Whit  worth  v.  Carter 
Whywall  v.  Champion 
Wickison  v.  Cook 
Wieman  v.  Anderson 
Wier  i'.  Stilly  > 
Wiggins  v.  Keizer 
Wightman  v.  Wightman 
Wilber,  In  re 
Wilburn  v.  McCalley 
Wilcox  v.  Roath 

v.  Todd 
Wilcox's  Settlement,  Re 
Wilder  v.  Aldrich 

v.  Ember 
Wildman  v.  Wildman 
Wilhelm  v.  Hard  man 
Wilkes  v.  Rogen 
Wilkins's  Guardian 
Wilkinson  v.  Charlesworth 
v.  Gibson 

v.  Parry 
v.  Wilkinson 
Willard  v.  Dow 
v.  Eastham 
v.  Fairbanks 
Stone 


77,78 
425 
487 

177,  179 
446 
262 
399 
206 
252a,  20  la,  438 
203 
241 
143 

261,  262 
353 

162. 


380 
338 
348,  352,  353,  386 
304 
225 
143 
143 

26 
155 
385 
351 
207 

94 
399 

75 

87 

102 

401,  406,  408,  435 

316,  372 

193 

58 
408 
389 
164 

23 
279 

10 
206 
129 
435 
152 
281 
189 
450 

83 
443 
239 
334 

83 
221 
394 
154 
183 
6,  139,  143,  158 
343 
402 


413, 


Willet  v.  Commonwealth 


395 


Williams,  Case  of 

v.  Amory 

v.  Avery 

v.  Baker 

v.  Barner 

v.  Brown 

v.  Carle 

v.  Duncan 

v.  Harrison 

v.  Heirs 

v.  Hugunin 

v.  Hutchinson 

v.  King 

v.  Mabee 

v.  Maull 

v.  McGahay 

v.  Mc  Grade 

?\  Mercier 

v.  Moore 

v.  Morton 

v.  Norris 

v.  Powell 

v.  Prince 

v.  Walker 

v.  Warren 

v.  Wiggard 

v.  Wilbur 

v.  Williams  26, 

Williams's  Appeal 
Williams's  Real  Property 
Williamson  v.  Warren 

v  Yager 
Willick  v.  Taggart 
Willis  v.  Brooke 

v.  Fox 

v.  Sayres 

v.  Snelling 

v.  State 

v.  Twombly 
Williston  v.  White 
Willoughby,  Re 
Wills's  Appeal 
Wilson,  Re 

v.  Babb 

v.  Branch 

v.  Breeding 

v.  Ensworth. 

v.  Ford 

v.  Glassop 

v.  Jones 

v.  Kohlheim 
v.  Life  Ins.  Co. 
i>.  McMillan 
v.  Wilson        57,  148, 
Wilt  v.  Vickers 
Wilthaus  v.  Ludicus 
Wilton  v.  Hill 

v.  Middlesex  R. 
Wimberley  v.  Jones 
Winchester  v.  Thayer 
Windlaud  v.  Deeds 


SECTION 

204,  356 

89 

124 

96 

269 

405 

181 

329,  363 

308,  404 

397 

143,  148,  157 

201,202,  27:; 

120,  140,  147 

440 

124,  191 

67 

110 

57 

401,  407,  438 

361,  307,  309 

437 

389 

67 

187 

301 

363 

151 

226,  277,  441 

187 

201 

301 

183 

352 

446 

350,  372 

105 

SI 

395 

409,  437 

379 

303 

350,  352 

308 

225 

447 

198 

261 

61,  103 

66 

136,  143 

270 

443 

252  a,  270 

216,  239,  209 

259,  202 

164 

134 

25S 

438 

402,  lo* 

'J  7  3 


lxxviii 


TABLE   OF   CASES. 


SECTION 

SECTIOW 

"Windsor  v.  Bell 

155 

Woodruffe  v.  Cox 

85 

Wing  v.  Goodman 
v.  Howe 

53 

v.  Logan 

420 

388 

Woodrum  v.  Kirkpatrick 

124 

v.  Taylor 

16 

Woodward,  Ex  parte 

247 

Winn  v.  Benburg 

348 

v.  Anderson 

261 

v.  Sprague 

268 

v.  Barnes 

B3,  64,  65 

Winslow  v.  Crocker 

82 

v.  Seaver 

150 

v.  People 

377 

v.  Spring 

328 

v.  State 

245 

v.  Wilson 

151 

v.  Winslow 

343 

v.  Woodward 

230,  329 

Winslowe  v.  Tighe 

87 

Woodward's  Appeal 

347 

Winsmore  v.  Greenbank 

259 

Woolf  v.  Eaton 

440 

Winstell  v.  Hebl 

90 

v.  Pemberton 

296,  450 

"Winter  v.  Truax 

386 

Woolscombe,  Ex  parte 

320 

v.  Walter 

120  a 

Woolsey  v.  Brown 

145 

"Winton  v  McAttee 

316 

Woolston's  Appeal 

187 

v.  Newcomtnen 

237 

Worcester  v.  Marchant      237 

, 260,  273 

Wise  v.  Norton 

313 

Word  v.  Vance 

425 

"Wiser  v.  Blackley 

366 

Wormley's  Estate 

120  a 

v.  Lockwood 

19 

Worrall  v.  Jacob 

216 

Witham,  Re 

307 

Worth  v.  York 

118,  119 

Withers  v.  Hickman 

369 

Worthington  v.  Cooke 

150,  158 

Witman'a  Appeal 

308 

v.  Curtis 

253 

Witsell  v.  Charleston 

129,  137 

Wortman  v.  Price 

155 

Witty  v.  Marshall 

235 

Worts  v.  Cubitt 

281 

Wolcott  v.  Patterson 

61,64 

Wotton  v.  Hele 

90,  95 

Wolf  v.  Bauereis 

219 

Wray  v.  Wray 

67 

Wolfe  v.  State 

377 

Wren  v.  Donnell 

273 

Wollaston  v.  Tribe 

174 

i>.  Gayden 

323 

Womack  v.  Austin 

388 

v.  Kiston 

350 

v.  Womack 

440 

;\  Wren 

162 

Wonell'8  Appeal 

353 

Wright  v.  Arnold 

389 

Wood,  Re 

389 

v.  Brown 

150 

r,  Adams 

30 

v.  Burrows 

158 

v.  Blacks                       370, 

371,  372 

v.  Dean 

268 

v.  Boots 

347 

v.  Dresser 

146 

v.  Chetwood 

53 

v.  Fearis 

205 

v.  Corcoran 

208 

v.  Germain 

433,  439 

v.  Downes 

388 

v.  Leonard 

425 

v.  Gale 

335 

v.  Maiden  &  Melrose  Kailroad 

v.  Guild 

241 

Co. 

429 

v.  Kelly 

01 

v.  Naylor 

333 

v.  Losey 

413 

v.  Bobinson 

345 

r.  Mather 

363 

v.  Sadler 

193 

v.  Shurtleff 

53 

v.  Steele 

437 

c.  Simmons 

225 

v.  Strauss 

144  a 

v.  Stafford 

318 

v.  Vanderplank 

271 

v.  Terry 

58,  97 

v.  Wright 

191,  298 

v.  Truax 

351,  III 

Wyatt  i\  Simpson 

89 

v.  Wasliburn 

868 

Wych  v.  Packington 

388 

,-.  Wood                       120 

127,  248 

Wyckolf  v.  Boggs 

30 

ill »  Moore 

453 

v.  Hulse 

353 

Woodbeck  v.  Havens 

162 

Wyraan  >\  Adams 

414 

Woodberrj  i    Hammond 

372,  :;77 

v,  Hrice 

334 

Woodcock  v.  Reed 

10) 

v.  Hooper 

386 

Woodman  v.  <  lliapmaa 

^\ 

W vnn  v.  Benbury 

384 

v.  Rowe 

4  19 

Wythe  v.  Smith 

114 

v.  Woodman 

198 

X. 

Woodmansie  v.  Woodmansie 

878 

Woodmeston  v.  Walker 

lit:; 

Xaiider  v.  Commonwealth 

866 

Woodi  nil  i    Bow  lea 

02 

Ximcnes  v.  Smith 

190 

TABLE    OF   CASES. 


Ixxi.v 


8ECTION 

Yale  v.  Dederer  141,  143,  145,  152 

Yarborough  v.  State  34 

Yates  v.  Lyon  404 

Yeager  v.  Jones  385 

v.  Knights  405 

v.  Merkle  94 

Yeager's  Appeal  372 

Yeakel  v.  McAtee  270 

Yearteau  v.  Bacon  279 

Yeatman  v.  Yeatman  36 

Yeaton  v.  Yeaton  183 

Yopst  v.  Yopst  81 

York  v.  Ferner  183  a 

Yost  v.  State  367 

Young  v.  Durrall  94 

v.  Estes  446 


SECTION 

Young  v.  Fowler 

.7.14 

v.  Graff 

187 

v.  Herman 

269 

v.  Hicks 

183 

v.  Lorain 

315 

v.  Paul 

58 

v.  Swift 

119 

v.  Tarbell 

350 

v.  Young 

124,317,  449 

Yourse  v.  Norcross 

W>,  405 

Z. 

Zimmer  v.  Settle 

218 

Zimmerman  v.  Erhard 

109 

v.  Zimmerman 

269,  274 

Zinn  v.  Law 

194 

Zouch  v.  Parsons  401,  405,  406,  409, 423 


THE   DOMESTIC   EELATIONS. 


3 


THE  DOMESTIC  RELATIONS. 


PAET    I. 

INTRODUCTORY  CHAPTER. 

§  1.  Domestic  Relations  defined  ;  Earlier  "Writers.  —  The  law 
of  the  domestic  relations  is  the  law  of  the  household  or  fam- 
ily, as  distinguished  from  that  of  individuals  in  the  external 
concerns  of  life.  Five  leading  topics  are  embraced  under 
this  head  :  First,  husband  and  wife.  Second,  parent  and  child. 
Third,  guardian  and  ward.  Fourth,  infancy.  Fifth,  master 
and  servant.  These  will  be  successively  considered  in  the 
present  treatise. 

Our  general  rule  of  classification  is  borrowed  from  Kent.1 
But  other  writers  on  the  domestic  relations  have  analyzed 
their  subject  differently.  Blackstone  omits  infancy  as  a  topic 
distinct  from  parent  and  child,  and  hence  makes  but  four 
divisions.2  The  same  is  true  of  Reeve.3  Such  a  method  of 
treatment  answered  the  purpose  of  these  writers  sufficiently ; 
but  since  their  day  the  topic  of  guardian  and  ward  has  grown 
into  importance,  giving  occasion  to  the  discussion  of  many 
principles  which  apply  as  well  to  parent  and  child,  for  which 
reason  it  is  found  better  to  draw  off  from  both  what  is  peculiar 
to  neither,  and  make  the  new  heading  of  infancy.  Bingham, 
on  the  other  hand,  wrote  a  treatise  in  which  the  only  divisions 
observed  were  those  of  infancy  and  coverture.4  This  plan 
would  be  found  defective  for  a  work  like  the  present ;  for,  in 

i  2  Kent,  Com.  Lee.  26-32.  8  Reeve,  Dom.  Rel. 

2  1  Bl.  Com.  Lee.  14-17.  *  Bing.  Inf.  &  Cov. 

3 


§  1  THE    DOMESTIC    RELATIONS.  [PART   I. 

the  first  place,  the  subject  of  master  and  servant  must  be 
ignored  altogether;  and,  secondly,  that  of  guardian  and  ward 
cannot  receive  the  distinctive  treatment  it  deserves.  Besides, 
the  very  juxtaposition  of  two  such  words  as  "  infancy "  and 
"  coverture  "  suggests  a  similitude  neither  flattering  to  woman 
nor  in  accordance  with  the  present  law  of  husband  and  wife, 
as  will  fully  appear  hereafter.  Fraser,  who  writes  for  readers 
of  the  civil,  or  rather  the  Scotch,  law,  while  otherwise  clas- 
sifying like  Blackstone,  adds  the  relation  of  master  and  ap- 
prentice to  that  of  master  and  servant,1  in  which  respect  his 
example  is  not  to  be  imitated  by  common-law  writers.  Upon 
the  whole,  therefore,  the  rule  of  Kent  seems  to  us  the  pref- 
erable one,  as  being  concise,  comprehensive,  and  well  adapted 
to  the  present  state  of  English  and  American  law. 

It  is  curious  to  notice  that  all  of  these  writers  —  and  there 
are  none  else  of  standard  authority  who  profess  to  occupy  the 
whole  subject  —  plunge  at  once  into  the  law  of  their  leading 
topics  with  nothing  by  way  of  general  introduction ;  nothing 
to  indicate  to  the  reader  whither  they  propose  leading  him. 
Not  one  has  attempted  to  draw  the  chart  which  shall  deter- 
mine his  legal  bearings.  Nor  is  the  definition  of  the  term 
"  domestic  relations  "  to  be  found  in  the  books  above  specified. 
Indeed,  were  it  not  for  the  title-page  of  Reeve's  work,  and  a 
few  casual  passages  in  Kent's  Commentaries,  where  the  same 
words  occur,  one  might  ask  how  the  expression  "  domestic 
relations  "  crept  into  general  use  among  lawyers.  Blackstone 
uses  the  terms  "  private  economical  relations,"  and  "  relations 
in  private  life;"  words  which  of  themselves  would  seem  to 
give  a  much  wider  scope  to  our  subject.2  But  Blackstone 
at  all  times  manifests  a  strong  predilection  for  independent 
analysis,  with  special  reference,  moreover,  to  the  arrangement 
of  his  course  of  lectures ;  and  in  this  particular  instance  the 
context,  as  well  as  the  classification,  seems  to  show  that 
"domestic    relations"   was   the   topic   in    his   mind.     Eraser's 

1  Frater, Dotn.  Hel.  (Scotch),  2 roll,  standing    in    the    public   relations    of 

2  1  Bl.  Com.  Leo.  14.  The  writer  magistrates  and  people;  and  the  word 
had  just  finished  discussing  at  length  "private"  marks  the  desired  con- 
the    rights   and    duties   of   persons   ns  trast. 


PART   I.]  INTRODUCTORY.  §  2 

complete  title  is  "personal  and  domestic  relations."  Not- 
withstanding all  this  it  is  certain  that  "  domestic  relations  " 
is  now  the  well-sanctioned  title  of  that  law  which  embraces 
the  topics  specified  by  us  at  the  outset,  as  those  who  exam- 
ine the  digests  of  reported  cases  and  the  codes  of  our  leading 
States  can  testify.  To  legal  precision  in  this  respect,  Reeve 
certainly  contributed  not  a  little  by  the  choice  of  a  suitable 
title  for  his  volume,  so  long  the  standard  text-book  for 
English  and  American  students. 

§  2.  Plan  of  Classification,  &c.  —  Starting,  then,  with  a  defi- 
nition simple,  natural,  and  well  adapted  to  the  materials  in 
hand,  we  next  ask  what  are  the  proper  limitations  of  our  sub- 
ject ?  what  should  a  text-book  on  the  English  and  American 
law  of  the  domestic  relations  comprise  ?  (1)  As  to  three 
of  our  topics,  —  husband  and  wife,  parent  and  child,  and 
infancy,  —  the  question  is  easily  answered.  Their  very  names 
convey  a  distinct  significance  even  to  the  mind  of  the  unpro- 
fessional reader.  Except  it  be  in  the  meaning  of  the  word 
"infancy,"  which  the  law  applies  to  all  persons  not  arrived 
at  majority,  but  popular  usage  restricts  to  the  period  of  help- 
lessness, all  intelligent  persons  agree  in  the  general  use  of 
the  terms  we  have  employed.  And  so  strong  are  the  moral 
obligations  which  attend  marriage  and  the  training  of  off- 
spring, so  intimately  blended  with  the  welfare  and  happiness 
of  mankind  are  the  ties  of  wife  and  child,  that  scarcely  any 
one  grows  up  without  some  knowledge  of  the  general  prin- 
ciples of  law  applicable  to  these  topics,  and  particularly  of  such 
of  the  rights  and  duties  as  concern  the  person  rather  than  the 
property.  For  positive  law  but  enforces  the  mandates  of  the 
law  of  nature,  and  develops  rather  than  creates  a  system. 

(2)  Yet  even  here  it  should  be  observed  by  the  profes- 
sional reader  that  the  term  "husband  and  wife"  is  acquiring 
at  law  a  more  limited  and  technical  sense  than  formerly.  The 
idea  of  marriage  involves  both  the  entrance  into  the  relation 
and  the  relation  itself ;  and  akin  to  marriage  celebration  is 
the  dissolution  of  marringe  by  divorce,  or  what  we  may  term 
our  recognized  legal  exit  from  the  relation.  Hence  marriage 
and  divorce  constitute  an  important  topic  by  themselves ;  and 

5 


§  2  THE   DOMESTIC   RELATIONS.  [PART  I. 

we  find  treatises  which  profess  to  deal  with  these  alone. 
Marriage  and  divorce,  moreover,  have  in  England  pertained 
until  quite  recently  to  the  peculiar  jurisdiction  of  ecclesias- 
tical courts,  constituting  what  is  termed  an  ecclesiastical  law.1 
The  rights  and  duties  which  grow  out  of  the  marriage  rela- 
tion, on  the  other  hand,  still  remain  for  separate  discussion : 
the  consequence  of  the  celebration ;  the  effect  of  marriage 
upon  the  property  of  each ;  the  personal  status  of  the  parties, 
—  in  short,  what  new  legal  responsibilities  are  assumed,  and 
what  legal  privileges  are  gained  by  the  two  persons  who 
have  once  voluntarily  united  as  husband  and  wife.  It  is  to 
this  latter  subdivision,  rather  than  the  former,  that  the  title 
of  husband  and  wife  seems  at  the  present  day  to  apply. 
Eeeve  devotes  but  a  brief  chapter  to  marriage  and  divorce. 
Kent  separates  the  subdivisions  completely,  applying  the  title 
of  husband  and  wife  as  above.  Yet  Blackstone,  writing  be- 
fore either,  had  devoted  two  thirds  of  his  lecture  on  husband 
and  wife  to  the  treatment  of  marriage  and  divorce  alone, 
and  very  briefly  disposed  of  the  rights  and  disabilities  of 
the  marriage  union  under  the  same  general  heading.  The 
many  and  rapid  changes  to  which  the  entire  law  of  husband 
and  wife  has  been  latterly  subjected ;  the  growth  of  divorce 
legislation  on  the  one  hand,  and  of  property  legislation  for 
married  women  on  the  other,  fully  justifies  a  subdivision  so 
important.  We  shall  subordinate,  then,  the  topic  of  marriage 
and  divorce  to  that  of  the  marriage  status,  following,  in  this 
respect,  the  modern  legal  usage ;  at  the  same  time  noting  that. 
if  some  special  term  could  be  coined  to  distinguish  the  sub- 
division husband  and  wife  from  that  general  division  which 
bears  the  same  name,  legal  analysis  would  be  more  exact. 

(3)  As  to  guardian  and  ward,  the  limitations  of  our  treatise 
are  nol  bo  <-.isily  marked  out.  In  respect  of  the  domestic  re- 
lations, the  guardian  is  a  sort  of  temporary  parent,  created  by 
the  law,  In  supply  to  young  children  the  place  of  a  natural  pro- 
tector. But  the  term  "  guardian  "  is  used  rather  indiscriminately 
in  these  days  with  reference  to  all  who  need  protection  at  the 

'  Burn,  Eccl,  Law;  1  Bishop,  Mar.  &  Div.  5th  ed.  §§  48-65. 
0 


PART   I.]  INTRODUCTORY.  §  2 

law.  Thus  we  have  guardians  of  insane  persons,  guardians  of 
spendthrifts,  and  even  guardians  of  the  poor.  Blackstone  treats 
of  these  last  guardians  under  the  head  of  public  relations ;  and 
certainly  they  do  not  fall  within  the  clear  scope  of  private  or  do- 
mestic relations.  Yet  the  legal  principles  applicable  to  one  class 
of  guardians  frequently  extend  as  well  to  all  others ;  and  we 
shall  hardly  expect  in  these  pages  to  trace  with  distinctness  that 
shadowy  line  which  separates  the  temporary  parent  from  the 
town  officer ;  nor  would  the  consulting  lawyer  expect  us  to  do 
so.  Again,  a  guardian's  duties  are  chiefly  with  respect  to  prop- 
erty ;  and  herein  they  so  nearly  resemble  those  of  testamentary 
trustees  that  one  frequently  finds  himself  gliding  unconsciously 
from  the  law  of  the  family  into  the  law  of  trusts. 

(4)  With  the  last  topic  of  the  domestic  relations  —  that  of 
master  and  servant  —  the  rule  of  classification  becomes  even 
more  uncertain.  If  servants  connected  with  the  household 
were  alone  to  be  considered  in  a  treatise  upon  the  domestic 
relations,  the  modern  cases  would  be  simple  and  few ;  but  no 
writer  has  presumed  to  limit  himself  to  such  narrow  bounds. 
In  former  centuries  this  relation  had  a  marked  significance. 
In  these  days  we  dislike  to  call  any  man  master.  The  recent 
abolition  of  slavery  in  the  United  States  has  wellnigh  removed 
all  traces  of  an  institution  known  to  the  ancient  Roman  Em- 
pire ;  elsewhere  recognized  as  the  common  barbarian  accom- 
paniment of  barbarian  triumphs  ;  and  in  spirit,  if  not  in  the 
letter,  once  fastened  upon  the  common  law,  while  the  feudal 
system  lasted.  As  one  of  the  domestic  relations,  this  topic  of 
master  and  servant  is  of  little  present  importance  in  England 
or  America ;  although  it  has  doubtless  an  existence.  In  its 
analogies,  however,  or  as  a  relation  sub  modo,  master  and  ser- 
vant has  features  which  the  courts  constantly  regard.  Appren- 
tices are,  without  much  violation  of  principle,  included  under 
this  head ;  they  are  generally  bound  out  during  minority  and 
brought  up  in  families.  Clerks  are  not  so  readily  confined 
within  the  circle  of  domestic  relations  as  formerly ;  and  the 
same  is  to  be  said  of  factors,  bailiffs,  and  stewards.  The  em- 
ployees of  a  corporation  are  frequently  designated  as  servants ; 
so  are  laborers  generally.     But  it  cannot  be  denied  that  master 

7 


§  3  THE  DOMESTIC   KELA1TONS.  [PAET   I. 

and  servant  is  rather  a  repulsive  title,  and  fast  losing  favor  in 
this  republican  country  ;  that  as  one  of  the  purely  domestic 
relations  it  rarely  attracts  attention ;  and  that  in  sounding  its 
legal  depths  one  often  loses  sight  of  his  landmarks,  and  finds 
himself  drifting  out  into  the  more  general  and  appropriate  sub- 
ject of  principal  and  agent. 

§  3.  General  Characteristics  of  the  Law  of  Family.  —  Whether 
we  consult  the  facts  of  history  or  the  inspirations  of  human 
reason,  the  family  may  be  justly  pronounced  the  earliest  of 
all  social  institutions.  Man,  in  a  state  of  nature  and  alone, 
was  subject  to  no  civil  restrictions.  He  was  independent  of 
all  laws,  except  those  of  God.  But  when  man  united  with 
woman,  both  were  brought  under  certain  restraints  for  their 
mutual  well-being.  The  propagation  of  offspring  afforded  the 
only  means  whereby  society  could  hope  to  grow  into  a  per- 
manent and  compact  system.  Hence  the  sexual  cravings  of 
nature  were  speedily  brought  under  wholesome  regulations ; 
as  otherwise  the  human  race  must  have  perished  in  the 
cradle.  Natural  law,  or  the  teachings  of  a  Divine  Provi- 
dence, supplied  these  regulations.  Families  preceded  nations. 
These  families  at  first  lived  under  the  paternal  government  of 
the  person  who  was  their  patriarch  or  chief.  But  as  they  in- 
creased, they  likewise  divided  ;  their  interests  became  conflict- 
ing, and  hostilities  arose.  Hence,  when  men  came  afterwards 
to  unite  for  their  common  defence,  they  composed  a  national 
body,  and  agreed  to  be  governed  by  the  will  of  him  or  those  on 
whom  they  had  conferred  authority.  Thus  did  government 
originate.  And  government,  for  its  legitimate  purposes,  placed 
restrictions  upon  the  governed ;  which  restrictions  thenceforth 
wen;  to  apply  to  individuals  in  both  their  family  and  social 
relations.1  Hut  the  law  of  the  domestic  relations  is  neverthe- 
less older  than  that  of  civil  society.  In  fact,  nations  them- 
selves  are  often  regarded  as  so  many  families;  and  the  very 
Dame  which  is  placed  at  the  head  of  this  work,  the  legislator 
constantly  applies  to  the  public  concerns  of  his  own  country  as 
contrasted  with  those  of  foreign  governments. 

1  Sec  Burlamaqui,  Nat.  Law,  ch.  iv.  §§  6,  9. 


PART   I.]  INTRODUCTORY.  §  4 

The  supremacy  of  the  law  of  family  should  not  be  forgotten. 
We  come  under  the  dominion  of  this  law  at  the  very  moment 
of  birth ;  we  thus  continue  for  a  certain  period,  whether  we 
will  or  no.  Long  after  infancy  has  ceased,  the  general  obli- 
gations of  parent  and  child  may  continue ;  for  these  last 
through  life.  Again,  we  subject  ourselves  by  marriage  to  a 
law  of  family ;  this  time  to  find  our  responsibilities  still  fur- 
ther enlarged.  And  although  the  voluntary  act  of  two  par- 
ties brings  them  within  the  law,  they  cannot  voluntarily  retreat 
when  so  minded.  To  an  unusual  extent,  therefore,  is  the  law 
of  family  above,  and  independent  of,  the  individual.  Society 
provides  the  home ;  public  policy  fashions  the  system ;  and  it 
remains  for  each  one  of  us  to  accustom  himself  to  rules  which 
are,  and  must  be,  arbitrary. 

So  is  the  law  of  family  universal  in  its  adaptation.  It  deals 
directly  with  the  individual.  Its  provisions  are  for  man  and 
woman  ;  not  for  corporations  or  business  firms.  The  ties  of 
wife  and  child  are  for  all  classes  and  conditions  ;  neither  rank, 
wealth,  nor  social  influence  weighs  heavily  in  the  scales.  To 
every  one  public  law  assigns  a  home  or  domicile;  and  this 
domicile  determines  not  only  the  status,  capacities,  and  rights 
of  the  person,  but  also  his  title  to  personal  property.  There 
is  the  political  domicile,  which  limits  the  exercise  of  political 
rights.  There  is  the  forensic  domicile,  upon  which  is  founded 
the  jurisdiction  of  the  courts.  There  is  the  civil  domicile, 
which  is  acquired  by  residence  and  continuance  in  a  certain 
place.  The  place  of  birth  determines  the  domicile  in  the  first 
instance ;  and  one  continues  until  another  is  properly  chosen. 
The  domicile  of  the  wife  follows  that  of  the  husband;  the 
domicile  of  the  infant  may  be  changed  by  the  parent.  Thus 
does  the  law  of  domicile  conform  to  the  law  of  nature. 

§  4.  Law  of  Husband  and  Wife  now  in  a  Transition  State; 
Various  Property  Schemes  Stated.  —  The  most  interesting  and 
important  of  the  domestic  relations  is  that  of  husband  and 
wife.  The  law  of  England  and  the  United  States,  on  this 
topic,  is  now  undergoing  a  remarkable  change;  and  so  un- 
settled are  its  principles  at  the  present  time,  with  reference 
to  the  rights   and   obligations   of   the    married    pair,   that  the 

9 


§  5  THE   DOMESTIC   RELATIONS.  [PART   I. 

writer  has  felt  constrained  to  depart  somewhat  from  the  usual 
plan  of  law  treatises,  adopting  what  might  be  termed  a  con- 
secutive or  historical  arrangement  of  his  materials ;  since  other- 
wise the  subject  would  furnish  to  the  reader's  mind  little  else 
than  a  series  of  unreconciled  contradictions.  To  show  clearly 
why  the  later  cases  conflict  with  the  earlier  will  at  least  aid 
the  future  legislator  and  jurist  in  their  efforts  to  place  the  law 
of  husband  and  wife  upon  a  firm  and  just  basis;  and  mean- 
while afford  to  the  practising  lawyer  all  the  assistance  which 
he  can  reasonably  expect. 

This  confused  state  of  the  law  of  husband  and  wife  is  exhib- 
ited in  a  contest  still  going  on  between  two  opposing  schemes 
for  adjusting  the  property  rights  of  the  married  parties.  The 
one  is  the  common-law  scheme ;  the  other  resembles  that  of 
the  civil  law.  The  former  is  at  the  basis  of  our  jurisprudence, 
English  and  American.  The  latter  has  had  a  powerful  influ- 
ence in  modern  times,  moulding  the  doctrines  of  the  equity 
tribunals  and  shaping  recent  legislation.  Let  us  examine 
these  schemes  separately,  and  afterwards  a  third  or  interme- 
diate scheme,  known  as  that  of  community. 

§  5.  Common-Law  Property  Scheme.  —  (1)  The  common- 
law  scheme  makes  unity  in  the  marriage  relation  its  cardinal 
point.  But  to  secure  this  unity  the  law  starts  with  the 
assumption  that  the  wife's  legal  existence  becomes  suspended 
or  extinguished  during  the  marriage  state ;  it  sacrifices  her 
property  interests,  and  places  her  almost  absolutely  within 
her  husband's  keeping,  so  far  as  her  civil  rights  are  con- 
cerned. Her  fortunes  pass  by  marriage  into  her  husband's 
hands,  for  temporary  or  permanent  enjoyment,  as  the  case 
may  be ;  she  cannot  earn  for  herself,  nor,  in  general,  contract, 
sue,  or  be  sued  in  her  own  right ;  and  this,  because  she  is  not, 
in  legal  contemplation,  a  person.  The  husband  loses  little  or 
nothing  of  his  own  independence  by  marriage;  but  in  order 
to  di  tribute  the  matrimonial  burdens  with  some  approach  to 
equality,  the  law  compels  him  to  pay  debts  on  his  wife's 
account,  which  he  never  in  fact  contracted,  not  only  where 
she  is  held  to  be  his  agent  by  legal  implication,  but  whenever 
it  happens  that  she  lias  brought  him  by  marriage  outstand- 
10 


PART   I.]  INTRODUCTORY.  §  6 

ing  debts  without  the  corresponding  means  of  paying  them. 
Husband  and  wife  take  certain  interests  in  one  another's  lands, 
such  as  curtesy  and  dower,  which  become  consummate  upon 
survivorship.  In  general,  their  property  rights  are  summarily 
adjusted  by  the  law  with  reference  rather  to  precision  than 
principle.  On  the  whole,  however,  the  advantages  are  with 
the  husband ;  and  he  is  permitted  to  lord  it  over  the  wife 
with  a  somewhat  despotic  sway ;  as  the  old  title  of  this  sub- 
ject —  baron  and  feme  —  plainly  indicates.  The  witty  observa- 
tion is  not  wholly  inappropriate,  that,  in  the  eye  of  the  common 
law,  husband  and  wife  are  one  person,  and  that  one  is  the 
husband.1 

§  6.  Civil-Law  Property  Scheme.  —  (2)  The  civil-law  scheme 
pays  little  regard  to  the  theoretic  unity  of  a  married  pair.  It 
looks  rather  to  the  personal  independence  of  both  husband  and 
wife.  Each  is  to  be  protected  in  the  enjoyment  of  property 
rights.  In  the  most  polished  ages  of  Roman  jurisprudence  we 
find,  therefore,  that  husband  and  wife  were  regarded  as  distinct 
persons,  with  separate  rights,  and  capable  of  holding  distinct 
and  separate  estates.  The  wife  was  comparatively  free  from  all 
civil  disabilities.  She  was  alone  responsible  for  her  own  debts  ; 
she  was  competent  to  sue  and  be  sued  on  her  own  contracts ; 
nor  could  the  husband  subject  her  or  her  property  to  any  lia- 
bility for  his  debts  or  engagements.2 

The  more  minute  details  of  the  common-law  scheme  of  hus- 
band and  wife  belong  to  the  main  portion  of  this  volume,  and 
need  not  here  be  anticipated.  Not  so,  however,  with  the  civil-law 
scheme ;  and  we  proceed  to  elaborate  it  somewhat  further.  In 
the  earlier  period  of  Roman  law  the  marital  power  of  the  hus- 
band was  as  absolute  as  the  patria  potestas.  But  before  the 
time  of  the  Emperor  Justinian  it  had  assumed  the  aspect  already 
noticed ;  in  which  it  is  to  be  distinguished  from  all  other  codes. 
The  communio  bonorum,  which  is  to  be  found  in  so  many  modern 
systems  of  jurisprudence  whose  basis  is  the  Roman  law,  treats 
the  wife's  separate  property  and  separate  rights  as  exceptional. 
The  peculiarities  of  the  civil  law  in  this  respect  may,  perhaps, 

1  See  post,  Part  II.,  as  to  coverture  -  1  Burge,  Col.  &  For.  Laws,  202, 

doctrine.  203. 

11 


§  6  THE   DOMESTIC   RELATIONS.  [PART  I. 

be  referred  to  the  disuse  into  which  formal  rites  of  marriage  had 
fallen.  Formal  marriage  gave  to  husband  and  wife  a  commun- 
ity of  interest  in  each  other's  property.  But  marriage  per  usum, 
or  by  cohabitation  as  man  and  wife,  which  became  universally 
prevalent  in  later  times,  did  not  alter  the  status  of  the  female  ; 
she  still  remained  subject  to  her  father's  power.  Hence  parties 
united  in  a  marriage  per  usum  acquired  no  general  interest  in 
one  another's  property,  but  only  an  incidental  interest  in  certain 
parts  of  it.  The  wife  brought  her  dos ;  the  husband  his  anti- 
dos ;  in  all  other  property  each  retained  the  rights  of  owners 
unaffected  by  their  relation  of  husband  and  wife.  The  dos  and 
anti-dos  were  somewhat  in  the  nature  of  mutual  gifts  in  con- 
sideration of  marriage.  Every  species  of  property  which  might 
be  subsequently  acquired,  as  well  as  that  owned  at  the  time  of 
marriage,  could  be  the  subject  of  dotal  gift.  The  father,  or  other 
paternal  ancestor  of  the  bride,  was  bound  to  furnish  the  dos,  and 
the  husband  could  compel  them  afterwards,  if  they  failed  to  do 
so ;  the  amount  or  value  being  regulated  according  to  the  means 
of  the  ancestor  and  the  dignity  of  the  husband.  This  pecuniary 
consideration  appears  to  have  influenced  the  later  marriages  to  a 
very  considerable  extent.  And  while  the  husband  had  no  con- 
cern with  the  wife's  extra-dotal  property,  —  since  this  she  could 
manage  and  alienate  free  from  all  control  or  interference,  —  over 
Tier  dotal  property  he  acquired  a  dominion  which  was  determin- 
able on  the  dissolution  of  the  marriage,  unless  he  had  become 
the  purchaser  at  an  estimated  value.  As  incidental  to  this  do- 
minion he  had  the  usufruct  to  himself,  he  might  sue  his  wife 
or  any  one  else  who  obstructed  his  free  enjoyment,  and  he  could 
alienate  the  personal  property  at  pleasure.  But  he  could  not 
charge  the  real  estate  unless  a  purchaser;  and  upon  his  death 
the  wife's  dotal  property  belonged  to  her,  or,  if  she  had  not 
been  emancipated,  to  her  father;  and  to  secure  its  restitution 
after  the  dissolution  of  marriage,  the  wife  had  a  tacit  lien  upon 
her  husband's  property.  Of  the  anli-dos,or  donatio  propter  nup- 
(ia8,  nol  so  much  is  known;  but  this  appears  to  have  generally 
COl  responded  with  the  dos  ;  it  was  restored  by  the  wife  upon  the 
dissolution  of  marriage,  and  was  regarded  as  her  usufructuary 
property  in  like  manner.  It  was  not  necessarily  of  the  same 
12 


PART    I.]  INTRODUCTORY.  §  7 

value  or  amount  with  the  wife's  <loi.  Over  his  general  prop- 
erty the  husband  retained  the  sole  and  absolute  power  of  alien- 
ation, and  his  wife  had  no  interest  in  it,  nor  could  she  interfere 
with  his  right  of  management.1 

But  the  civil  law  allowed  agreements  to  be  made  by  which 
these  rights  might  be  regulated  and  varied  at  pleasure.  And 
by  their  stipulations  the  married  parties  might  so  enlarge  their 
respective  interests  as  to  provide  for  rights  to  the  survivor.2 
These  agreements  were  not  unlike  the  antenuptial  settlements 
so  well  known  to  our  modern  equity  courts,  which  we  shall 
consider  in  due  course  hereafter. 

§7.  Community  Property  Scheme. —  (3)  The  eommunio 
bonorum,  or  community  system,  relates  to  marital  property,  in 
which  respect  it  occupies  an  intermediate  position  between 
the  civil  and  common  law  schemes.  The  eommunio  bonorum 
may  have  been  part  of  the  Roman  law  at  an  earlier  period 
of  its  history,  but  it  had  ceased  to  exist  long  before  the  com- 
pilation of  the  Digest ;  though  parties  might  by  their  nuptial 
agreement  adopt  it.3  This  constitutes  so  prominent  a  feature 
of  the  codes  of  France,  Spain,  and  other  countries  of  modern 
Europe,  whence  it  has  likewise  found  its  way  to  Louisiana, 
Florida,  Texas,  California,  and  other  adjacent  States,  once 
subject  to  French  and  Spanish  dominion,  and  erected,  in  fact, 
out  of  territory  acquired  during  the  present  century  upon 
the  Mississippi,  the  Gulf  of  Mexico,  and  the  Pacific  Ocean, 
that  it  deserves  a  brief  notice. 

The  relation  of  husband  and  wife  is  regarded  by  these 
codes  as  a  species  of  partnership,  the  property  of  which,  like 
that  of  any  other  partnership,  is  primarily  liable  for  the  pay- 
ment of  debts.  This  partnership  or  community  applies  to  all 
property  acquired  during  marriage ;  and  it  is  the  well-settled 
rule  that  the  debts  of  the  partnership  have  priority  of  claim 
to  satisfaction  out  of  the  community  estate.  Sometimes  the 
community  is  universal,  comprising  not  only  property  acquired 
during  coverture,  but  all  which  belonged  to  the  husband  and 

1  1  Burge,  Col.  &  For.  Laws,  202  ;  8  1  Burge,  Col.  &  For.  Laws,  202 ;  lb 
lb.  263  et  seq.                                                  263  et  seq. 

2  1  Burge,  Col.  &  For.  Laws,  273. 

13 


§  7  THE    DOMESTIC    RELATIONS.  [PART   I. 

wife  before  or  at  their  marriage.1  It  is  evident,  therefore,  that 
the  provisions  of  such  codes  may  differ  widely  in  different 
States  or  countries.  The  principle  which  distinguishes  the 
community  from  both  the  civil  and  common  law  schemes  is, 
however,  clear;  namely,  that  husband  and  wife  should  have 
no  property  apart  from  one  another. 

Under  modern  European  codes  this  law  of  community  em- 
braces profits,  income,  earnings,  and  all  property  which,  from 
its  nature  and  the  interest  of  the  owner,  is  the  subject  of  his 
uncontrolled  and  absolute  alienation ;  but  certain  gifts  made 
between  husband  and  wife  in  contemplation  of  marriage  are 
of  course  properly  excluded.2  Whether  antenuptial  debts  are 
to  be  paid  from  the  common  property,  as  well  as  debts  con- 
tracted while  the  relation  of  husband  and  wife  continues, 
would  seem  to  depend  upon  the  extent  of  the  communio  bono- 
rum,  as  including  property  brought  by  each  as  capital  stock 
to  the  marriage,  or  only  such  property  as  they  acquire  after- 
wards3 The  codes  of  modern  Europe  recognize  no  general 
capacity  of  the  wife  to  contract,  sue,  and  be  sued,  as  at  the 
later  civil  law.  On  the  contrary,  the  husband  becomes,  by 
his  marriage,  the  curator  of  his  wife.  He  has,  therefore,  the 
sole  administration  and  management  of  her  property,  and 
that  of  the  community ;  and  she  is  entirely  excluded  in  every 
case  in  which  her  acts  cannot  be  referred  to  an  authority, 
express  or  implied,  from  her  husband.4  Hence,  too,  all  debts 
and  charges  are  incurred  by  the  husband.  The  community 
ceases  on  the  termination  of  marriage  by  mutual  separation 
or  the  death  of  either  spouse.5  And  the  various  codes  pro- 
vide for  the  rights  of  the  survivor  on  the  legal  dissolution 
of  the  community  by  death. 

The  reader  may  readily  trace  the  influence  of  the  community 
system  upon  the  jurisprudence  of  Louisiana  and  the  other 
Stat'"-  to  which  we  have  referred,  whose  annexation  was  sub- 
sequent to  the  adoption  of  our  Federal  Constitution,  by  exam- 

1   1    Barge,  Col.  &  For.  Laws,  277  nity ;   but  the   Spanish   law  included 

et  seij.  both  real  and  personal  estate.     Child- 

-  1    Burge,  Col.  &  For.  Laws,  281,  ress  v.  Cutter,  16  Mo.  24. 

282      By  the  French  law  only  the  per-  s  1  Rurpe,  2'.H. 

■onal  estate  entered  into  the  commu-  4  lb.  296,  801.         6  76.303,305. 

14 


PART   I.J  INTRODUCTORY.  §  7 

ining  their  judicial  reports.  The  Civil  Code  of  Louisiana,  as 
amended  and  promulgated  in  1824,  pronounced  that  the  part- 
nership or  community  of  acquets  or  gains  arising  during 
coverture  should  exist  in  every  marriage  where  there  was 
no  stipulation  to  the  contrary.  This  was  a  legal  consequence 
of  marriage  under  the  Spanish  law.1  The  statutes  of  Texas, 
Florida,  Missouri,  California,  and  other  neighboring  States,  are 
characterized  by  similar  features.  But  all  of  these  laws  have 
been  modified  by  settlers  bringing  with  them  the  principles  of 
the  common  law.  So,  too,  the  doctrines  of  separate  estate, 
revived  in  modern  jurisprudence,  are  introduced  into  the  legis- 
lation of  these  as  other  American  States.2  The  American 
community  doctrine,  as  we  may  term  it,  is  that  all  property 
purchased  or  acquired  during  marriage,  by  or  in  the  name  of 
either  husband  or  wife,  or  both,  including  the  produce  of 
reciprocal  industry  and  labor,  shall  be  deemed  to  belong 
prima  facie  to  the  community,  and  be  held  liable  for  the 
community  marriage  debts  accordingly.3  But  it  will  be  per- 
ceived that,  in  our  American  codes,  community,  as  an  inci- 
dent to  marriage  property,  is  only  a  presumption,  which  may 
be  overcome  in  any  instance  by  proof  that  the  property  was 
acquired  as  the  separate  estate  of  either  the  husband  or  wife. 
This  community  rule,  moreover,  as  it  is  evident,  does  not 
apply  to  the  property  which  either  husband  or  wife  brought 
into  the  marriage ;  such  property,  by  the  codes,  being  dis- 
tinctly kept  to  each  spouse  apart  as  his  or  her  separate  prop- 


1  Art.  2312,  2369,  2370 ;  2  Kent,  Cal.  428 ;  Eslinger  v.  Eslinger,  47  Cal. 
Com.  183,  n.  62.     The  wife's  earnings,  unless  given 

2  Texas  Digest,  Paschal,  "  Marital  her  by  the  husband,  and  likewise  prop- 
Rights  ;  "  Cal.  Civil  Code,  "Husband  erty  bought  with  such  earnings,  must 
and  Wife;"  Parker's  Cal.  Dig.  "  Hus-  belong  to  the  community.  Johnson  v. 
band  and  Wife;"  Walker  v.  Howard,  Burford,  39  Tex.  242;  Ford  v.  Brooks, 
34  Tex.  478;  Caulk  v.  Picou,  23  La.  35  La.  Ann.  157.  But  see  Fisk  v. 
Ann.  277.  And  see  Forbes  v.  Moore,  Flores,  43  Tex.  340.  The  husband,  as 
32  Tex.  195.  head   and    master  of   the  community, 

3  Louisiana  Civil  Code,  §§  2309-  has  the  right  to  dispose  of  its  movable 
2372;  Succession  of  Planchet,  29  La.  effects.  Cotton  v.  Cotton,  34  La.  Ann. 
Ann.  529 ;  Tally  v.  Heffner,  29  La.  858.  For  the  American  community 
Ann.  583.  Land  owned  by  a  spouse  doctrine  in  detail,  see  Schouler,  Hus. 
at  the  time  of  marriage  does  not  fall  &  Wife,  §§  339-345  ;  Stimson,  Am. 
into  the  community.     Lake  v.  Lake,  52  Stat.  Law,  §  6434. 

15 


§  7  THE   DOMESTIC   RELATIONS.  [PART   I. 

erty.1  And,  besides,  it  is  now  usually  provided  by  legislation 
that  property  acquired  during  marriage,  "  by  gift,  bequest,  de- 
vise, or  descent,"  with  the  rents,  issues,  and  profits  thereof, 
shall  be  separate,  not  common  property.  The  tendency,  then, 
in  our  States,  where  the  law  of  community  still  exists  — 
though  all  have  not  proceeded  in  legislation  to  the  same 
length  —  is  to  limit  rather  than  extend  its  application.  The 
wife  has  a  tacit  mortgage  for  her  separate  property,  so  far  as 
the  law  may  have  placed  it  in  her  husband's  control;  also 
lpon  the  community  property  from  the  time  it  went  into  his 
hands;  and,  moreover,  she  may,  on  surviving  her  husband, 
renounce  the  partnership  or  community,  in  which  case  she 
takes  back  all  her  effects,  whether  dotal,  extra-dotal,  heredi- 
tary, or  proper.2 

On  the  whole,  there  is  in  the  doctrine  of  community  much 
that  is  fair  and  reasonable ;  but  in  the  practical  workings  of 
this  system  it  is  found  rather  complicated  and  perplexing, 
and  hence  unsatisfactory ;  while  in  no  part  of  the  United 
States  can  it  be  said  to  exist  at  this  day  in  full  force,  since 
husband  and  wife  are  left  pretty  free  to  contract  for  the 
separate  enjoyment  of  property,  and  so  exclude  the  legal 
presumption  of  community  altogether ; 3  and,  moreover,  the 
constant  tendency  of  our  Southwestern  States  is  to  remodel 
their  institutions  upon  the  Anglo-American  basis,  common  to 
the  original  States  and  those  of  the  Ohio  valley. 

1  La.   Code,   §§  2316,   2369,    2371;  reference  to  the  husband's  liability  for 

Pinard'a  Succession,  30  La.  Ann.  167  ;  her  paraphernal  property,  is  discussed 

McAfee    v,    Pobertson,   43   Tex.    591;  by  Mr.  Justice  Gray  in  Fleitas  v.  Rich- 

Hanrick    v.    Patrick,   119    U.    S.    l.r>6;  ardson,  147  II.  S.  550. 

M\  rick's  l'rot).  93 ;  Schmeltz  v.  Garey,  8  See  Packard  v.  Arellanes,  17  Cal. 

49  Tex.  49.     But  the  wife  should  not  525;  Waul  v.  Kirknian,  25  Miss.  609; 

mingle  her  separate    funds  with  those  Succession   of   McLean,    12    La.    Aun. 

of   the   community  in    making   a  pur-  222;  Jones  r.  Jones,  15  Tex.  143;  Ex 

chase,  as  of  her  separate  estate.     Reid  parte.   Melbonrn,   L.  R.   6  Ch.  64  ;   La. 

v.    Rochereau,    2    Woods,     151.      See  Civil  Code,  §§  2369-2405 ;  1  Purge,  Col. 

Bchouler,  II us.  &  Wife,  §  341.  &  For.  Laws,  277  et  scq.,  where  the  law 

'2  Schouler,    Hue.   &   Wife,   §§  341,  of  community  as   it  was  about   half  a 

342.     And  see  Hi.  §§  343,  344,  as  to  the  century  ago  is  fully  set  forth;  and  the 

wife's   separate    property   under    these  learned  note  to  2  Kent,  Com.  183.     See 

code*;    viz.,   dotal    and    extra-dotal    or  also  Schouler,  IIus.  and  Wife,  §§  335- 

paraphernal.     The  status  of  a  married  345. 
woman  under  the  Louisiana  Code,  with 

16 


PART   I.]  INTRODUCTORY.  §  9 

§  8.  The  Recent  Married  Women's  Acts.  —  What  are  famil- 
iarly known  as  the  "  married  women's  acts,"  the  product  for 
the  most  part  of  our  American  legislation  since  1848,  and 
more  recently  engrafted  upon  the  code  of  Great  Britain,  aim 
to  secure  to  the  wife  the  independent  control  of  her  own 
property,  and  the  right  to  contract,  sue,  and  be  sued,  without 
her  husband,  under  reasonable  limitations.  These  acts,  there- 
fore, substitute  in  a  great  measure  the  civil  for  the  common 
law.  It  may  be  laid  down  that  the  common  law,  in  denying 
to  the  wife  the  rights  of  ownership  in  property  acquired  by 
gift,  purchase,  bequest,  or  otherwise,  did  her  injustice,  and 
that  a  radical  change  became  necessary ;  and  this  is  shown, 
not  only  in  the  legislation  of  our  States,  but  by  the  fact  that 
the  equity  tribunals  gradually  moulded  the  unwritten  law  of 
England  so  as  to  secure  like  results. 

All  this  separate  property  legislation,  as  well  as  the  equity 
doctrines  pertaining  to  the  subject  in  England  and  the  several 
United  States,  will  be  duly  set  forth  in  these  pages  hereafter, 
so  far  as  the  chaotic  condition  of  the  law  at  this  transition 
period  will  permit.1  And  the  modification  of  the  respective 
property  rights  of  a  married  pair  by  marriage  contracts  or 
settlements  will  also  be  considered.2 

§  9.  Marriage  and  Marital  Influence.  —  In  the  connubial 
joys  to  which  every  age  and  nation  bear  witness,  the  vast 
majority  of  this  globe's  inhabitants  must  have  participated 
from  one  era  to  another,  with  a  certain  voluntary  adjustment 
of  the  reciprocal  burdens,  such  as  relieved  both  husband  and 
wife  of  a  sense  of  bondage  to  one  another.  And  thus  have 
the  inequalities,  the  hardships  of  marriage  codes,  proved  less 
in  practice  than  in  literal  expression.  For  whatever  the 
apparent  severity  of  the  law,  human  nature  or  love's  divine 
instinct  works  in  one  uniform  direction,  —  namely,  towards 
uniting  the  souls  once  brought  into  the  arcana  of  married 
life  in  an  equally  honorable  companionship.  Woman's  weak- 
ness   has   been    her   strongest   weapon ;    where   her    influence 

1  See   coverture    doctrine,   modified         2  Marriage  Settlements,  post. 
by  equity  and  modern  statutes,  Part 
II.,  post, 

■i  17 


§    10  THE    DOMESTIC    DELATIONS.  [PART    T. 

could  not  overflow,  it  permeated  ;  and  if  her  life  has  been, 
legally  speaking,  at  her  husband's  mercy,  her  constant  study 
to  please  has  kept  him  generally  merciful.  She  has  not  been 
superior  to  her  race  and  epoch,  but  on  the  whole  as  well 
protected,  as  well  advanced,  in  her  day,  as  those  of  the 
other  sex.  Except  for  this,  the  wife's  lot  must  have  been 
miserable  indeed,  even  under  the  most  civilized  institutions 
ever  established.  Codes  and  the  experience  of  nations  in 
this  respect  show  strange  inconsistencies :  laws  at  one  time 
degrading  to  woman,  and  yet  marital  happiness ;  laws  at 
another  elevating  her  independence  to  the  utmost,  and  yet 
marital  infelicities,  lust,  and  bestiality.1 

§  10.  General  Conclusions  as  to  the  Law  of  Husband  and 
"Wife.  —  The  conclusions  to  which  this  writer's  investigation 
upon  the  general  subject  of  husband  and  wife  conducts  him, 
are  these.  Marriage  is  a  relation  divinely  instituted  for  the 
mutual  comfort,  well-being,  and  happiness  of  both  mau  and 
woman,  for  the  proper  nurture  and  maintenance  of  offspring, 
and  for  the  education  in  turn  of  the  whole  human  race.  Its 
application  to  society  being  universal,  the  fundamental  rights 
and  duties  involved  in  this  relation  are  recognized  by  some- 
thing akin  to  instinct,  and  often  designated  by  that  name,  so 
as  to  require  by  no  means  an  intellectual  insight ;  intellect, 
in  fact,  impairing  often  that  devotedness  of  affection  which  is 
the  essential  ingredient  and  charm  of  the  relation.  Indeed, 
the    rudest    savages    understand  how   to  bear    and    bring    up 

1  See  examination  of  ancient  mar-  the  bonds  of  family  affection   became 

riage    systems,    including   that   of    the  weakened.      When    the   Empire    sank 

Roman   Republic,  in  Schouler's  IIus.  &  into  utter  dissolution  woman  possessed 

Wife,  §§  4-6.  a  largo  share   of  cultivation   and    per- 

Whether,  in  setting  at  naught  that  sonal   freedom;    yet   she   had   touched 

Identity  of  interesta  which   is  essential  the   lowest   depths  of    social   degrada- 

to  domestic  happiness,  the  later  Roman  tion. 

scheme    was    fatally    defective,   or    the  This  degradation  it  became  the  mis- 

ConjagaJ  decay   which  ensued  was  duo  sion  of  the  Christian  Church  to  correct 

to  causes  more  latent,  need  not  here  he  during  the   lapse  of  the  dark  ages   by 

discussed.     Certain   it,  is,  however,  that  restoring    the   dignity   of    marriage, — 

Widespread    incestuous    intercourse,    li-  exalting  it,  in  fact,  to  a  sacrament,  and 

cautiousness   most    loathsome  and   un-  almost  utterly  prohibiting  its  dissolu- 

Datural,  followed  in  the  wake  of  mari-  tion.     From  so   strict  a  view  of   mar- 

tal    independence,   and  as  the  interests  riage,  however,  Trotestant  countries  in 

of  husband  ami  wife   began  to  diverge,  modern  times  dissent.     lb. 

18 


PART   I.]  INTRODUCTORY.  §  10 

healthy  offspring.  Legal  and  political  systems  are  accretions 
based  upon  marriage  and  property ;  but  in  the  family  rather 
than  individualism  we  find  the  incentive-  to  accumulation,  and 
in  the  home  the  primary  school  of  the  virtues,  private  and 
public.  At  the  same  time  marriage  affords  necessarily  a  dis- 
cipline to  both  sexes ;  sexual  indulgence  is  mutually  per- 
mitted under  healthy  restraints ;  woman's  condition  becomes 
necessarily  one  of  comparative  subjection ;  man  is  tamed  by 
her  gentleness  and  the  helplessness  of  tender  offspring,  and 
for  their  sake  he  puts  a  check  upon  his  baser  appetites,  and 
concentrates  his  affection  upon  the  home  he  has  founded. 
Such  is  the  conjugal  union  in  what  we  may  term  a  state  of 
nature.  And  now,  while  man  frames  the  laws  of  that  union, 
as  he  always  does  in  primitive  society,  he  regards  himself  as 
the  rightful  head  of  the  family  and  lord  of  his  spouse ;  and, 
somewhat  indulgent  of  his  own  errant  passions,  he  makes  the 
chastity  of  his  wife  the  one  indispensable  condition  of  their 
joint  companionship.  She,  on  her  part,  more  easily  chaste 
than  himself,  views  with  pain  whatever  embraces  he  may  bestow 
upon  others  of  her  sex.  Her  personal  influence  over  him, 
always  strong,  enlarges  its  scope  as  the  State  advances  in 
arts  and  refinement,  until  at  length  woman,  as  the  maiden, 
the  wife,  and  the  matron,  becomes  intellectually  cultivated,  a 
recognized  social  power  in  the  community.  Yearning  now 
for  a  wider  influence  and  equal  conditions,  her  attention, 
strongly  concentrated  upon  the  marriage  relation,  seeks  to 
make  the  marriage  terms  more  equal :  first,  she  desires  her  prop- 
erty secured  to  her  own  use,  whether  married  or  single,  and, 
indignant  at  the  inadequate  remedies  afforded  under  the  law 
for  wifely  wrongs,  demands  the  right  of  dismissing  an  un- 
worthy husband  at  pleasure ;  moreover,  as  a  mother,  she  claims 
that  the  children  shall  be  hers  hardly  less  than  the  father's. 
These  first  inroads  are  easily  made ;  for  what  she  demands  is 
theoretically  just.  But  just  at  this  point  the  peril  of  female 
influence  is  developed.  Woman  rarely  comprehends  the  vio- 
lence of  man's  unbridled  appetite,  or  perceives  clearly  that, 
after  all,  in  the  moral  purity  and  sweetness  of  her  own  sex, 
such  as  excites  man's  devotion  and  makes  home  attractive,  is 

19 


§  11  THE   DOMESTIC    RELATIONS.  [PART   L 

the  fundamental  safeguard  of  life  and  her  own  most  powerful 
lever  in  society,  besides  the  surest  means  of  keeping  men 
themselves  continent.  She  forgets,  too,  that,  to  protect  that 
purity  and  maintain  her  moral  elevation,  a  certain  seclusion 
is  needful ;  which  seclusion  is  highly  favorable  to  those  do- 
mestic duties  which  nature  assigns  her  as  her  own.  More  is 
granted  woman.  The  bond  of  marriage  being  loosened,  poster- 
ity degenerates,  society  goes  headlong ;  and  the  flood-gates  of 
licentiousness  once  fully  opened,  the  hand  must  be  strong  that 
can  close  them  again. 

Happiness,  we  may  admit,  differs  with  the  capacity,  like  the 
great  and  small  glass  equally  full  which  Dr.  Johnson  mentions. 
Yet  marriage  is  suited  to  all  capacities ;  and  men  and  women  are 
the  complement  of  one  another  in  all  ages,  neither  being  greatly 
the  intellectual  superior  of  the  other  at  any  epoch,  but  the  man 
always  having  necessarily  the  advantage  in  physical  strength 
and  the  power  to  rule.  The  best-ordered  marriage  union  for 
any  community  is  that  in  which  each  sex  accepts  its  natural 
place,  where  woman  is  neither  the  slave  nor  the  rival  of  man, 
but  his  intelligent  helpmate  ;  where  a  sound  progeny  is  brought 
up  under  healthy  home  influences.  The  worst  is  that  where 
conjugal  and  parental  affection  fail,  and  all  is  discord  and  un- 
rest, a  sea  without  a  safe  harbor.  To  the  household,  stability 
may  prove  more  essential  than  freedom,  and  woman's  status 
more  dignified  or  more  degraded,  as  the  case  may  be,  than  the 
law  assumes  to  fix  it.  Under  all  circumstances,  moreover,  the 
physical  superiority  of  the  male  companion,  and  his  propensity 
to  self-indulgence,  are  forces  which  woman  will  always  have 
to  reckon  with. 

§  11.  Remaining  Topics  of  the  Domestic  Relations  ;  Modern 
Changes.  —  Of  the  remaining  topics  to  be  discussed  in  the  pres- 
ent treatise,  little  need  be  said  by  way  of  general  preface. 
These  have  felt  the  softening  influences  of  modern  civiliza- 
tion. The  common-law  doctrine  of  Parent  and  Child  finds 
its  most  important  modifications  in  the  gradual  admission  of 
the  mother  to  something  like  an  equal  share  of  parental  author- 
ity; in  the  growth  of  popular  systems  of  education  for  the 
young  ;  in  the  enlarged  opportunities  of  earning  a  livelihood 
20 


PART  1.1  INTRODUCTORY.  §  11 

afforded  to  the  children  of  idle  and  dissolute  parents;  and  in 
the  lessened  misfortunes  of  bastard  offspring.  Guardian  and 
Ward,  a  relation  of  little  importance  up  to  Blackstone's  day, 
has  rapidly  developed  since  into  a  permanent  and  well-regu- 
lated system  under  the  supervision  of  the  chancery  courts, 
and,  in  this  country,  of  the  tribunals  also  with  probate  juris- 
diction ;  and  much  of  the  old  learning  on  this  branch  of  the 
law  has  become  rubbish  for  the  antiquary.  The  law  of  Infancy 
remains  comparatively  unchanged.  Of  Master  and  Servant,  we 
have  spoken. 

We  are  now  to  investigate  in  detail  the  law  of  these  several 
topics.  But  first  the  reader  is  reminded  that  the  office  of  the 
text-writer  is  to  inform  rather  than  invent ;  to  be  accurate 
rather  than  original;  to  chronicle  the  decisions  of  others,  not 
his  own  desires ;  to  illumine  paths  already  trodden ;  to  criticise, 
if  need  be,  yet  always  fairly  and  in  furtherance  of  the  ends  of 
justice ;  to  analyze,  classify,  and  arrange ;  from  a  mass  of  dis- 
cordant material  to  extract  all  that  is  useful,  separating  the  good 
from  the  bad,  rejecting  whatever  is  obsolete,  searching  at  all 
times  for  guiding  principles ;  and,  in  fine,  to  emblazon  that  long 
list  of  judicial  precedents  through  which  our  Anglo-Saxon  free- 
dom "  broadens  slowly  down." 

21 


§  13  THE   DOMESTIC   RELATIONS.  [PART  II. 


PAET  II. 

HUSBAND  AND  WIFE. 


CHAPTER   I. 

MARRIAGE. 


§  12.  Definition  of  Marriage. — The  word  "marriage"  signi- 
fies, in  the  first  instance,  that  act  by  which  a  man  and  woman 
unite  for  life,  with  the  intent  to  discharge  towards  society 
and  one  another  those  duties  which  result  from  the  relation 
of  husband  and  wife.  The  act  of  union  having  been  once  ac- 
complished, the  word  comes  afterwards  to  denote  the  relation 
itself. 

§  13.  Marriage  more  than  a  Civil  Contract.  —  It  has  been 
frequently  said  in  the  courts  of  this  country  that  marriage  is 
nothing  more  than  a  civil  contract.1  That  it  is  a  contract  is 
doubtless  true  to  a  certain  extent,  since  the  law  always  pre- 
sumes two  parties  of  competent  understanding  who  enter  into 
a  mutual  agreement,  which  becomes  executed,  as  it  were,  by 
the  act  of  marriage.  But  this  agreement  differs  essentially  from 
all  others.  This  contract  of  the  parties  is  simply  to  enter  into  a 
certain  status  or  relation.  The  rights  and  obligations  of  that  sta- 
tus are  fixed  by  society  in  accordance  with  principles  of  natural 
law,  and  are  beyond  and  above  the  parties  themselves.  They 
may  make  settlements  and  regulate  the  property  rights  of  each 
other;  but  they  cannot  modify  the  terms  upon  which  they  are 
to  live  together,  nor  superadd  to  the  relation  a  single  condition. 
Being  once  bound,  they  are  bound  forever.     Mutual  consent,  as 

1  See  Stimson,  Am  Stat.  Law,  §  6100. 

22 


CHAP.  I.]  MARRIAGE.  §   13 

in  all  contracts,  brings  them  together ;  but  mutual  consent  can- 
not part  them.  Death  alone  dissolves  the  tie,  • —  unless  the  leg- 
islature, in  the  exercise  of  a  rightful  authority,  interposes  by 
general  or  special  ordinance  to  pronounce  a  solemn  divorce;  and 
this  it  should  do  only  when  the  grossly  immoral  conduct  of  one 
contracting  party  brings  unmerited  shame  upon  the  other,  dis- 
graces an  innocent  offspring,  and  inflicts  a  wound  upon  the  com- 
munity. So  in  other  respects  the  law  of  marriage  differs  from 
that  of  ordinary  contracts.  For,  as  concerns  the  parties  them- 
selves, mental  capacity  is  not  the  only  test  of  fitness,  but  physical 
capacity  likewise,  —  a  new  element  for  consideration,  no  less  im- 
portant than  the  other.  Again,  the  encumbrance  of  an  existing 
union  operates  here  as  a  special  disqualification.  Blood  relation- 
ship is  another.  So,  too,  an  infant's  capacity  is  treated  on  pecu- 
liar principles,  as  far  as  the  marriage  contract  is  concerned ;  for 
he  can  marry  young  and  be  bound  by  his  marriage.  Third  par- 
ties cannot  attack  a  marriage  and  have  it  nullified  because  of  its 
injury  to  their  own  interests.  International  law  relaxes  its 
usual  requirements  in  favor  of  marriage.  And  finally  the  formal 
celebration  now  commonly  prevalent,  both  in  England  and 
America,  is  something  peculiar  to  the  marriage  contract ;  and  in 
its  performance  we  see  but  the  faintest  analogy  to  the  execution 
and  delivery  of  a  sealed  instrument. 

The  earnestness  with  which  so  many  of  our  American  pro- 
genitors insisted  upon  the  contract  view  of  marriage  may  be 
ascribed  in  part  to  their  hatred  of  the  Papacy  and  ritualism, 
and  their  determination  to  escape  the  Roman  Catholic  conclu- 
sion that  marriage  was  a  sacrament.  By  no  people  have  the 
marriage  vows  been  more  sacredly  performed  than  by  ours 
down  to  a  period,  at  all  events,  comparatively  recent.  That  a 
State  legislature  is  not  precluded  from  regulating  the  marriage 
institution  under  any  constitutional  interdiction  of  acts  impair- 
ing the  obligation  of  contracts,  or  interfering  with  private  rights 
and  immunities,  has  frequently  been  asserted.1  And  as  to  the 
private  regulation  of  their  property  rights,  by  the  contract  of 

1  Maguire  v.  Maguire,  7  Dana,  181  ;     Ottenheimer,   6    Oreg.  231 ;   Adams  v 
Green  v.  State,  58  Ala.   190;  Frasher    Palmer,  51  Me.  480. 
v.   State,   3   Tex.   App.   263;  Rugh  v. 

23 


§  14  THE  DOMESTIC   RELATIONS.  [PART  II. 

parties  to  a  marriage,  that,  of  course,  is  to  be  distinguished  from 
their  marriage,  which  may  take  place  without  any  property 
regulation  whatever.1 

We  are,  then,  to  consider  marriage,  not  as  a  contract  in  the 
ordinary  acceptation  of  the  term,  but  as  a  contract  sui  generis, 
if  indeed  it  be  a  contract  at  all,  —  as  an  agreement  to  enter  into 
a  solemn  relation  which  imposes  its  own  terms.  On  the  one 
hand  discarding  the  unwarranted  dogmas  of  the  Church  of 
Borne,  by  which  marriage  is  elevated  to  the  character  of  a 
sacrament,  on  the  other  we  repudiate  that  dry  definition  with 
which  the  lawgiver  or  jurist  sometimes  seeks  to  impose  upon 
the  natural  instincts  of  mankind.  We  adopt  such  views  as  the 
distinguished  Lord  Eobertson  held.2  And  Judge  Story  observes 
of  marriage :  "  It  appears  to  me  something  more  than  a  mere 
contract.  It  is  rather  to  be  deemed  an  institution  of  society 
founded  upon  the  consent  and  contract  of  the  parties  ;  and  in 
this  view  it  has  some  peculiarities  in  its  nature,  character, 
operation,  and  extent  of  obligation,  different  from  what  be- 
longs to  ordinary  contracts."  3  So  Fraser,  while  defining  mar- 
riage as  a  contract,  adds  in  forcible  language  :  "  Unlike  other 
contracts,  it  is  one  instituted  by  God  himself,  and  has  its  founda- 
tion in  the  law  of  nature.  It  is  the  parent,  not  the  child,  of 
civil  society."  4  And  we  may  add  that  a  recent  American  text- 
writer,  of  high  repute  upon  the  subject,  not  only  pronounces  for 
this  doctrine,  after  a  careful  examination  of  all  the  authorities, 
but  ascribes  the  chief  embarrassment  of  American  tribunals, 
in  questions  arising  under  the  conflict  of  marriage  and  divorce 
laws,  to  the  custom  of  applying  the  rules  of  ordinary  contracts 
to  the  marriage  relation.5 

§  14.  Marriages  void  and  voidable.  —  A  distinction  is  made 
at  law  between  void  and  voidable  marriages.  This  distinction, 
which  appears  to  have  originated  in  a  conflict  between  the  Eng- 
lish ecclesiastical  and  common-law  courts,  was  first  announced 

1  Lord  Stowell,  in  Lindov.  Beliaario,         4  1  Frasor,  Dom.  Rel.  87. 

1  Hag.  Con.  -'l<; ;   i  Bishop,  Mar.  &  l)iv.         r>  l  Bishop,  Mar.  &  Div.  5th  ed.  §  18. 

5th  ed.  §  u.  And  *<•<•  Dickson  v.  Dickson,  1  Yerg. 

2  Dnntze  v.  Levett,  Ferg.  68,  385,  110,  per  Patron,  J.;  Pitson  v.  Pitson, 
:$:i7  ;  .'i  Eng.  Ec.  360,  195,  502.  4  R.  I.  87,  per  Ames,  C.  J. 

«  Story,  Confl.  Laws,  §  108,  n. 
24 


CHAP.  I.]  MARRIAGE.  §  14 

in  a  statute  passed  during  the  reign  of  Henry  VIII. ;  and  it  is 
also  to  be  found  in  succeeding  marriage  and  divorce  acts  down 
to  the  present  day.  The  distinction  of  void  and  voidable  ap- 
plies, not  to  the  legal  consequences  of  an  imperfect  marriage, 
once  formally  dissolved,  but  to  the  status  of  the  parties  and 
their  offspring  before  such  dissolution.  A  void  marriage  is  a 
mere  nullity,  and  its  validity  may  be  impeached  in  any  court, 
whether  the  question  arise  directly  or  collaterally,  and  whether 
the  parties  be  living  or  dead.  But  a  voidable  marriage  is  valid 
for  all  civil  purposes  until  a  competent  tribunal  has  pronounced 
the  sentence  of  nullity,  upon  direct  proceedings  instituted  for 
the  purpose  of  setting  the  marriage  aside.  When  once  set  aside, 
the  marriage  is  treated  as  void  ah  initio ;  but  unless  the  suit 
for  nullity  reaches  its  conclusion  during  the  lifetime  of  both 
parties,  all  proceedings  fall  to  the  ground,  and  both  survivor 
and  offspring  stand  as  well  as  though  the  union  had  been  law- 
ful from  its  inception.1  Hence  we  see  that  while  a  void  mar- 
riage makes  cohabitation  at  all  times  unlawful,  and  bastardizes 
the  issue,  a  voidable  marriage  protects  intercourse  between  the 
parties  for  the  time  being,  furnishes  the  usual  incidents  of  sur- 
vivorship, such  as  curtesy  and  dower,  and  encourages  the  propa- 
gation of  children.  But  the  moment  the  sentence  of  nullity 
is  pronounced,  the  shield  of  the  law  falls,  the  incidents  vanish, 
and  innocent  offspring  are  exposed  to  the  world  as  bastards ; 
and  herein  is  the  greatest  hardship  of  a  voidable  marriage.  One 
feature  in  much  of  our  modern  marital  legislation  is  the  increas- 
ing favor  shown  to  innocent  parties  who  were  misled ;  where 
the  man  or  the  woman  or  both  of  them  acted  in  good  faith, 
civil  as  well  as  criminal  consequences  are  guarded  against ;  and 
children  innocently  begotten  before  the  disability  was  discovered 
in  fact,  are  treated  as  legitimate  offspring.2 

The  old  rule  is  that  civil  disabilities,  such  as  idiocy  and 
fraud,  render  a  marriage  void ;  while  the  canonical  impedi- 
ments, such  as  consanguinity  and  impotence,  made  it  voidable 
only.     This  test  wTas  never  a  clear  one,  and  it  has  become  of 

1  1  St.  32  Hen.  VIII.  c.  38.     See  1  2  See  e.  g.  the  "  Enoch  Arden  "  Stat- 

Bishop,  Mar.  &  Div.  5th  ed.  §  108  et  utes  cited  in  Stimson's  Am.  Stat.  Law. 
seq.  §  6116. 

25 


§  15  THE   DOMESTIC   RELATIONS.  [PART   II. 

little  practical  consequence  at  the  present  day.  Statutes  both 
in  England  and  America  have  greatly  modified  the  ancient  law 
of  valid  marriages,  and  it  can  only  be  affirmed  in  general  terms 
that  the  legislative  tendency  is  to  make  marriages  voidable 
rather  than  void,  wherever  the  impediment  is  such  as  might  not 
have  been  readily  known  to  both  parties  before  marriage ;  and 
where  public  policy  does  not  rise  superior  to  all  considerations 
of  private  utility.  Modern  civilization  strongly  condemns  the 
harsh  doctrine  of  ab  initio  sentences  of  nullity ;  and  such  sen- 
tences have  now  in  general  a  prospective  force  only,  in  order 
that  rights  already  vested  may  remain  unimpaired,  and,  still 
more,  that  children  may  not  suffer  for  the  follies  of  their  parents.1 
As  for  availing  one's  self  of  a  voidable  marriage  as  well  as  in 
divorce,  it  may  be  asserted  as  a  general  maxim  that  the  party 
should  be  prompt  to  act  when  he  has  his  right  and  knows 
it,  and  that  he  should  also  seek  to  enforce  his  rights  with  good 
faith  and  honor  on  his  own  part.2  Whenever  or  wherever  an 
innocent  party  finds  one's  self  entrapped  iuto  a  void  or  voidable 
marriage,  cohabitation  should  cease  and  the  separation  should  be 
instant  and  absolute. 

§  15.  Essentials  of  Marriage.  —  We  shall  consider  in  this 
chapter  that  act  by  which  parties  unite  in  matrimony,  —  for 
to  this  the  term  "marriage"  is  most  frequently  applied.  It 
may  be  stated  generally  that,  in  order  to  constitute  a  perfect 
union,  the  contracting  parties  should  be  two  persons  of  the 
opposite  sexes,  without  disqualification  of  blood  or  condition, 
both  mentally  competent  and  physically  fit  to  discharge  the 
duties  of  the  relation,  neither  of  them  being  bound  by  a  pre- 
vious nuptial  tie,  neither  of  them  withholding  a  free  assent; 
and  the  expression  of  their  mutual  assent  should   be  substan- 

1  Shelf.  Mar.  &  Div.  154;  76.  470-  Montgomery,  2  Tonn.  Ch.  216.     And 

4ft  I;  1   151.  Com.  434;  1  Bishop,  Mar.  &  soo   post   as   to   impotence   or   physical 

Div.   5th   ed.  §§105-120.     See  Stat.  5  incapacity. 

&6  Will.  IV.  c.  54;  2  N.  Y.   Rev.  Sts.  The  local   statutes   are   collated   on 

139,  $  0 ;  Mass.  Gen,  Sts.  c.  100,  §4;  this  point  in  Stimson's  Am.  Stat.  Law, 

Harrison  o.  State,  22  Md.  4f>R;  Bowers  §ij  6111-6116. 

v.  Bowers,   10   Rich.  Eq.  551  ;    I'in^ree  '2  Affirmance,     condonation,     conni- 

i    I  roodrii  li,   tl    Vt.  47;  Divorce,  /msf.  vance,  are   excuses    suggested    to    the 

Held    contra    as  to  the   marriage   of  a  defending  party;  and  recrimination  is 

negro   and    white    person.      Carter    v.  common  in  divorce  libels. 

26 


CHAP.  I.]  MARRIAGE.  §  16 

tially  in  accordance  with  the  prescribed  forms  of  law.  These 
are  the  essentials  of  marriage.  Hence  we  are  to  treat  of  the 
following  topics  in  connection  with  the  essentials  of  a  valid 
marriage :  first,  the  disqualification  of  blood ;  second,  the  dis- 
qualification of  civil  condition  ;  third,  mental  capacity  ;  fourth, 
physical  capacity ;  fifth,  the  disqualification  of  infancy,  which 
in  reality  is  based  upon  united  considerations  of  mental  and 
physical  unfitness  ;  sixth,  prior  marriage  undissolved ;  seventh, 
force,  fraud,  and  error ;  eighth,  the  formal  celebration  of  a  mar- 
riage, under  which  last  head  may  be  also  included  the  consent 
of  parents  or  guardians,  not  to  be  deemed  an  essential,  except  in 
conformity  with  the  requirements  of  the  marriage  celebration 
acts.  These  essentials  all  have  reference  solely  to  the  time, 
place,  and  circumstances  of  entering  into  the  marriage  relation, 
and  not  to  any  subsequent  incapacity  of  either  party. 

§  16.  Disqualification  of  Blood  ;  Consanguinity  and  Affinity. — ■ 
And,  first,  as  to  the  disqualification  of  blood.  On  no  point 
have  writers  of  all  ages  and  countries  been  more  united  than 
in  the  conviction  that  nature  abhors,  as  vile  and  unclean,  all 
sexual  intercourse  between  persons  of  near  relationship.  But 
on  few  subjects  have  they  differed  more  widely  than  in  the 
application  of  this  conviction.  Among  Eastern  nations,  since 
the  days  of  the  patriarchs,  practices  have  prevailed  which  to 
Christian  nations  and  in  days  of  civilized  refinement  seem 
shocking  and  strange.  The  difficulty  then  is,  not  in  discov- 
ering that  there  is  some  prohibition  by  God's  law,  but  in 
ascertaining  how  far  that  prohibition  extends.  This  difficulty 
is  manifested  in  our  language  by  the  use  of  two  terms, — 
"  consanguinity  "  and  "affinity  ;"  one  of  which  covers  the  terra 
firma  of  incestuous  marriages,  the  other  offers  debatable 
ground.  The  disqualification  of  consanguinity  applies  to  mar- 
riages between  blood  relations  in  the  lineal,  or  ascending  and 
descending  lines..  There  can  be  but  one  opinion  concerning 
the  union  of  relations  as  near  as  brother  and  sister.  The 
limit  of  prohibition  among  remote  collateral  kindred  has, 
however,  been  differently  assigned  in  different  countries.  The 
English  canonical  rule  is  that  of  the  Jewish  law  which  protested 
against   the   promiscuous  practices  of  other  primitive  peoples. 

27 


§  16  THE    DOMESTIC    RELATIONS.  [PART   II. 

The  Greeks  and  Romans  recognized  like  principles,  though 
with  various  modifications  and  alterations  of  opinion.  But  the 
Church  of  the  Middle  Ages  found  in  the  institution  of  marriage, 
once  placed  among  the  sacraments,  a  most  powerful  lever  of 
social  influence.  The  English  ecclesiastical  courts  made  use 
of  this  disqualification,  extending  it  to  the  seventh  degree  of 
canonical  reckoning  in  some  cases,  and  beyond  all  reasonable 
bounds.1  So  intolerable  became  this  oppression  that  a  statute 
passed  in  the  time  of  Henry  VIII.  forbade  these  courts 
thenceforth  to  draw  in  question  marriages  without  the 
Levitical  degree,  "  not  prohibited  by  God's  law.  "  2  Under  this 
statute,  which  is  still  essentially  in  force  in  England,  the 
impediment  has  been  treated  as  applicable  to  the  whole 
ascending  and  descending  line,  and  further,  as  extending  to 
the  third  degree  of  the  civil  reckoning  inclusive ;  or  in 
other  words,  so  as  to  prohibit  all  marriages  nearer  than  first 
cousins.  Archbishop  Parker's  table  of  degrees,  which  recog- 
nizes these  limits,  has  been,  since  1563,  the  standard  adopted 
in   the  English  ecclesiastical  courts.3     The  statute   prohibition 

1  In  some  Roman  Catholic  countries  —  e.  g.  Portugal  —  the  marriage  of  first 
cousins  is  still  pronounced  incestuous.  See  Sottomayor  v.  De  Barros,  L.  R.  2 
P.  D.  81;  L.  R.3P.D.  1. 

2  Stat.  32  Hen.  VIII.  c.  38.  See  1  Bishop,  Mar.  &  Div.  5th  ed.  §§  106,  107  ; 
2  Kent,  Com.  82,  83  ;  Shelf.  Mar.  &  Div.  163  et  seq. ;  Wing  v.  Taylor,  2  Swab.  & 
T.  278,  295. 

8  1  Bishop,  Mar.  &  Div.  5th  ed.  §318;  Butler  v.  Gastrin,  Gilb.  Ch.  156. 
According  to  this  table,  — 

A  man  may  not  marry  his  A  woman  may  not  marry  her 

1.  Grandmother.  1.  Grandfather. 

2.  Grandfather's  wife.  2.  Grandmother's  husband. 

3.  Wife's  grandmother.  3.  Husband's  grandfather. 

4.  Father's  sister.  4.  Father's  brother. 

5.  Mother's  sister  5.  Mother's  brother. 

6.  Father's  brother's  wife  6.  Father's  sister's  husband. 

7.  .Mother's  brother's  wife.  7.  Mother's  sister's  husband. 

8.  Wife's  father's  sister.  8.  Husband's  father's  brother. 
'.).  Wife's  mother's  sister.  9.  Husband's  mother's  brother. 

10.  Mother.  10.  Father. 

11.  Stepmother.  11.   Step-fathor. 

1  _'    Wife's  mother.  12.  Husband's  father. 

18.  Daughter,  13.  Son. 

14.  Wife's  daughter.  14.  Husband's  son. 

28 


CHAP.  I.]  MARRIAGE.  §  16 

includes  legitimate  as  well  as  illegitimate  children,  and  half- 
blood  kindred  equally  with  those  of  the  whole  blood.1  Its 
principles  have  been  recognized  in  the  United  States.2 

But  the  English  law  goes  even  further,  and  places  affinity 
on  the  same  footing  as  consanguinity  as  an  impediment. 
Affinity  is  the  relationship  which  arises  from  marriage  be- 
tween a  husband  and  his  wife's  kindred,  and  vice  versa.  It 
is  shown  that  while  the  marriage  of  persons  allied  by  blood 
produces  offspring  feeble  in  body  and  tending  to  insanity, 
that  of  persons  connected  by  affinity  leads  to  no  such  result ; 
and  further,  that  consanguinity  has  been  everywhere  recog- 
nized as  an  impediment,  but  not  affinity.  The  worst  that 
can  probably  be  said  of  the  latter  is,  that  it  leads  to  a  con- 
fusion of  domestic  rights  and  duties.  No  question  has  been 
discussed  with  more  earnestness  in  both  England  and  America, 
with  less  positive  result,  than  one  which  turns  upon  this  very 
distinction  in  a  collateral  application ;  namely,  whether  a  man 
may  marry  his  deceased  wife's  sister.  This  question  has 
received  a  favorable  response  in  Vermont.3  Bat  in  England 
such  marriages  are  still  deemed  incestuous,  and  within  the 
prohibition  of  God's  law ;  and  the  House  of  Lords  resists  all 
legislative  change  in  this  respect.4  Cases  of  affinity  as  applied 
in  a  lineal  direction,  however,  are   more  repugnant  to  sound 

1  1  Bishop,  Mar.  &  Div.  5th  ed.  in  its  nature,  incapable  of  dissolution  ; 
§§  315,317;  Reg.  v.  Brighton,  1  B.  &  but  the  relationship  by  affinity  ceases 
S.  447.  with   the   dissolution   of  the   marriage 

2  Marriage  between  an  uncle  and  which  produced  it.  Therefore,  though 
niece  of  full  blood,  or  between  an  aunt  a  man  is,  by  affinity,  brother  to  his 
and  nephew,  has  been  treated  as  in-  wife's  sister,  yet,  upon  the  death  of 
cestnous  in  various  jurisdictions.  Har-  his  wife,  he  may  lawfully  marry  her 
rison  v.  State,  22  Md.  468 ;  Bowers  v.  sister." 

Bowers,  10  Rich.   Eq.  551.     And  there  4  Hill  v.  Good,  Vaugh.  302  ;  Harris, 

Are  a  few  States  which  forbid  the  mar-  v.   Hicks,  2    Salk.   548 ;  Shelf.  Mar.   & 

riage   of  persons   more   nearly  related  Div.  pp     172,  178;  [2  Kent,   Com.  84, 

than  second  cousins.     See  Stimson  Am.  note,   and    authorities    cited ;    Reg.    v. 

Stat.  Law,  §6111.  Chadwick,   12  Jur.  174;  11    Q.  B.  173; 

3  Blodget  v.  Brinsmaid,  9  Vt.  27  ;  Pawson  v.  Brown,  41  L.  T.  n.  s.  339 ; 
and  see  1  Pdshop,  Mar.  &  Div.  5th  ed.  Ex  parte  Naden,  L.  R.  9  Ch.  670.  And 
§  314  ;  Paddock  v.  Wells,  2  Barb.  Ch.  see  Commonwealth  v.  Ferryman,  2 
331.  Collamer,  J.,  in  Blodget  v.  Brins-  Leigh,  717,  as  to  the  Virginia  statute 
maid,  makes  this  ingenious  distinction  :  on  this  point. 

"  The  relationship  by  consanguinity  is, 

29 


§  17  THE   DOMESTIC   RELATIONS.  [PART   II. 

policy,  and  indeed  seem  almost  to  come  within  the  rule  of 
consanguinity.1 

Marriages  within  the  forbidden  degrees  of  consanguinity 
were  formerly  only  voidable  in  English  law;  but  by  modern 
statutes  they  have  been  made  null  and  void.  In  this  country 
they  are  generally  pronounced  by  statute  void  (in  some  cases 
void  from  the  time  the  sentence  is  pronounced),2  and  the 
offending  parties  are  liable  to  imprisonment  if  aware  of  the 
relationship.  But  with  regard  to  marriages  among  relatives  by 
affinity,  the  rule  is  not  so  stringent  as  in  England.3 

§  17.  Disqualification  of  Civil  Condition  ;  Race,  Color,  Social 
Rank,  Religion.  —  Second,  as  to  the  disqualification  of  civil 
condition.  Race,  color,  and  social  rank  do  not  appear  to 
constitute  an  impediment  to  marriage  at  the  common  law, 
nor  is  any  such  impediment  now  recognized  in  England.4 
But  by  local  statutes  in  some  of  the  United  States,  inter- 
marriage has  long  been  discouraged  between  persons  of  the 
negro,  Indian,  and  white  races.5  With  the  recent  extinction 
of  slavery,  many  of  these  laws  have  passed  into  oblivion, 
together  with  such  as  refused  to  allow  to  persons  held  in 
bondage,  and  negroes  generally,  the  rights  of  husband  and 
wife.  The  thirteenth  article  of  amendment  to  the  Constitution 
gives  Congress  power  to  enforce    the  abolition  of  slavery  "by 

1  Cf.  Table  of  Degrees,  supra ;  and  local  statute,  and  yet  not  made  void.  45 
Stimson,  §6111.  N.  J.  Eq.  485. 

2  That  is  tz  say,  not  void  ah  initio.  4  1  Rishop,  Mar.  &Div.  5th  ed.  §§308- 
See  supra,  §  14;  Harrison  v.  State,  22  311  ;  1  Burge,  Col.  &For.  Laws,  1.38. 
M'l.  4GS.  And  see  Bowers  v.  Bowers,  6  See  Bailey  v.  Fiske,  34  Me.  77; 
10  Rich.  Eq.  551  ;  Parker's  Appeal,  8  State  v.  Hooper,  5  Ire.  201  ;  State  v. 
Wright,  309,  where  an  incestuous  mar-  Brady,  9  Humph.  74;  Barkshire  v. 
riage  is  treated  as  simply  voidable.  State,  7  I  ml.  389  ;  1  Bishop,  Mar.  &  Div. 

a  2   Kent,  Com.  83,  84, and  notes;  1  5th  ed.  §§  154-163;  Schouler,  Has.  & 

Bishop,  Mar.  &  Div.  5th  ed.  §§  312-320;  Wife,   §16.      One  drop  less    than   one 

Regina  v.  Chadwick,  12  Jur.   174;  Sut-  fourth  negro  blood  saves  from  the  taint 

ton  '•    Warren,   10  Met.  451  ;  Bonham  in  Virginia.    McPherson  v.   Common- 

r.  Badgley,  2  Gilm.  622;  Wightman  v.  wealth,  28  Gratt.  939.      The   Missouri 

Wightman,    I  Johns.  Ch. ;  343;  Butler  statute    declaring    marriages    between 

v.   Gastrill,   Gilb.   Ch.    156;  Bargees  v.  white  persons  and  negroes  a  felony  is 

Barge    .  I    Hag,  Con.  384;  Blackmore  constitutional,  even  though  it  permits 

r.   Brider,  2   Phillim.  859.     Some  mar-  the    jury  to    determine   from   appear- 

riagea  of   affinity  are   prohibited  by  a  ances  the   proportion   of  negro   blood. 

State  v.  Jackson,  80  Mo.  175. 

30 


CHAP.  I.]  MARRIAGE.  §  18 

appropriate  legislation."  As  to  persons  formerly  slaves,  there 
are  now  acts  of  Congress  which  legitimate  their  past  cohabi- 
tation, and  enable  them  to  drop  the  fetters  of  concubinage. 
And  the  manifest  tendency  of  the  day  is  towards  removing 
all  legal  impediments  of  rank  and  condition,  leaving  indi- 
vidual tastes  and  social  manners  to  impose  the  only  restrictions 
of  this  nature.1  But  the  race  barrier  has  a  strong  foundation 
in  human  nature,  wherever  marriage  companionship  is  con* 
cerned.2 

§  18.  Mental  Capacity  of  Parties  to  a  Marriage.  —  Third,  as 
to  mental  capacity.  No  one  can  contract  a  valid  marriage 
unless  capable,  at  the  time,  of  giving  an  intelligent  consent. 
Hence  the  marriages  of  idiots,  lunatics,  and  all  others  who 
have  not  the  use  of  their  understanding  at  the  time  of  the 
union  are  now  treated  as  null ;  though  the  rule  was  formerly 
otherwise,  from  perhaps  too  great  regard  to  the  sanctity  of 
the  institution  in  the  English  ecclesiastical  courts.3  What 
degree  of  insanity  will  amount  to  disqualification  is  not  easily 
determined;  so  varied  are  the  manifestations  of  mental  disorder 
at  the  present  day,  and  so  gradually  does  mere  feebleness  of 
intellect  shade  off  into  hopeless  idiocy.  Certain  is  it  that  a 
person  may  enter  into  a  valid  marriage,  notwithstanding  he  has 
a  mental  delusion  on  certain  subjects,  is  eccentric  in  his  habits, 
or  is  possessed  of  a  morbid  temperament,  provided  he  displays 
soundness   in  other   respects  and   can  manage  his  own  affairs 

1  Act  July   25,    1866,  c.    240;    Act  tion  of  marriage   by  a   Popish   priest. 

June   6,    1866,   c.    106,  §  14.     And  see  These  are   disabilities    imposed    by    a 

15th  Amendment  TJ.  S.  Const. ;  Stew-  Protestant  parliament,  it  is  worth  ob- 

art  r.  Munchandler,  2  Bush  (Ky.),  278;  serving. 

State?-.  Harris,  63  N.  C.  1.     For  South-  2  Marriage  between  negroes  (or  In- 

ern   statutes   which   now   legalize    the  dians)  and  whites,  is  still  forbidden  in 

marriages   of    former   slaves,   &c,    see  many   of  the   United  States,   those   in 

Schouler.  Hus.  and  Wife,  §16;  also  80  particular  where  negroes  chiefly  dwell ; 

Va.  563  ;  67  Ga.  260 ;  69  Ala.  281  ;  87  while  in  Oregon  and  some  other  Pacific 

N.  C.  329;  10  Lea,  652.  States  similar  prohibitions  of  white  and 

As  to  statutes  formerly  forbidding  Chinese  marriages  are  found.     Stimson, 

marriage   between   a   Roman    Catholic  §6112. 

and   Protestant,  see  Commonwealth  v.  3  See    Lord    Stowell   in    Turner  v. 

Kenney,  120  Mass.   387;    Philadelphia  Meyers,    1    Hag.   Con.   414;  1  Bishop, 

v.   Williamson,    10    Phila.    176.      The  Mar.  &  Di v.  5th  ed.  §  125  ;  Stimson  Am, 

statute  19  Geo.  II.  ch.  13,  to  this  effect,  Stat.  Law,  §  6112. 
has  partial  reference  to  the  solemniza- 

31 


§  18  THE   DOMESTIC   RELATIONS.  [PART   II. 

with  ordinary  prudence  and  skill.1  Every  case  stands  on  its 
own  merits;  but  the  usual  test  applied  in  the  courts  is  that 
of  fitness  for  the  general  transactions  of  life ;  for,  it  is  argued, 
if  a  man  is  incapable  of  entering  into  other  contracts,  neither 
can  he  contract  marriage.2  This  test  is  sufficiently  precise  for 
most  purposes.  Yet  we  apprehend  the  real  issue  is  whether 
the  man  is  capable  of  entering  understandiugly  into  the  relation 
of  marriage.  There  are  two  questions,  however :  first,  whether 
the  party  understands  the  marriage  contract ;  second,  whether 
he  is  fit  to  perform  understandiugly  the  momentous  obligations 
which  that  contract  imposes ;  and  both  elements  might  well 
enter  into  the  consideration  of  each  case.  "  If  any  contract 
more  than  another,"  observes  Lord  Penzance  in  a  recent  English 
case,  "  is  capable  of  being  invalidated  on  the  ground  of  the 
insanity  of  either  of  the  contracting  parties,  it  should  be  the 
contract  of  marriage, — an  act  by  which  the  parties  bind  their 
property  and  their  persons  for  the  rest  of  their  lives."  3 

Marriage  contracted  during  a  lucid  interval  is  at  law  deemed 
valid ; 4  but  the  English  statute  provides  that  such  marriages 
are  void  when  a  commission  of  lunacy  has  once  been  taken 
out  and  remains  unrevoked.6  Similar  provisions  are  to  be 
found  in  some  of  our  States.  On  the  other  hand,  marriage  con- 
tracted by  a  person  habitually  sane,  during  temporary  insanity, 
is  unquestionably  void,6  as  of  course  would  be  any  marriage 
contracted  by  one  at  the  time  permanently  insane.7 

1  2    Kent,   Com.    76 ;    Browning   v.  Evidence  of    his   mental  condition   be- 

Beane,  2  l'liilliin.  69  ;  1  Bishop,  Mar.  &  fore  and  after  the  marriage    is  admis- 

Div.    5th    ed.  §§   124-142;    Turner    v.  sihle.     St.  George  v.  Biddeford,  76  Me. 

Meyers,  1    Hag.  Con.  414;  4  Eng.  Ec.  593;  Durham  v.  Durham,  10  P.  D.  80. 
440  ;   1  Bl.  Cora.  438,  439.  *  Shelf.  Mar.  &  Div.  197  ;  1   Bishop, 

-  Mud  way  v.  Croft,  3  Curt.  Ec.  671  ;  Mar.  &  Div.  §   1.30  ;  Banker  v.  Banker 

Anon.    4     Pick.    32;    Cole    v.    Cole,   5  63  N.  Y.  409 ;  Parker  v.  Parker,  6  Eng. 

Sneed,  57;  Atkinson  v.  Medford,  46  Ec.  165;  Smith  v.  Smith,  47  Miss.  211. 
Me.    510;    Ward  v.  Dulaney,  23  Miss.  5  Stat.   15  Geo.  II.  c.  30  (1742),  not 

410;  Elzey  v.  Elzey;  1  Iloust.  308;  part  of  the  common  law  in  this  country. 
M(  Kln.v's  Case,  6  W.  &  S.  451.     See  6  Legeyt  v.  O'Brien,  Milward,  325; 

1  Bishop,  Mar.  &  Div.  §  128;  Ex  parte  Parker  v.  Parker,  6  Eng.  Ec.  165. 
Glen,  1  Ki-s.  540.  7  See  Lord   Penzance  in   Hancock  v. 

»  Hancock  v.  Peaty,  L.  P.  1  P.  &  D.  Peaty,  L.  R.  1   P.  &  D.  335 ;  Banker  v. 

335,  ."ill.    The  question  is  whether  the  Banker,  63  N.  Y.  409;    McAdam    v. 

person    had    sufficient   mental   capacity  Walker,  1  Dow,  148 ;  1   Bishop,  Mar.  & 

to    make    the    contract    of     marriage.  Div.  §   130;  Smith  v.  Smith,  47  Miss. 

32 


CHAP.  I.]  MARRIAGE.  §  18 

Upon  the  principle  of  temporary  insanity,  drunkenness 
incapacitates,  it'  carried  to  the  excess  of  delirium  tremens; 
though  not,  it  would  appear,  if  the  party  intoxicated  retains 
sufficient  reason  to  know  what  he  is  doing.1  Drunkenness 
was  formerly  held  a  bad  plea,  for  the  common  law  permitted 
no  one  to  stultify  himself;  but  the  modern  rule  is  more  reason- 
able.2 Some  cases  require  that  fraud  or  unfair  advantage 
should  be  shown ;  yet  the  better  opinion  is  that  even  this  is 
unnecessary.3  Deaf  and  dumb  persons  were  formerly  classed 
as  idiots ;  this  notion,  however,  is  exploded.  They  may  now 
contract  marriage  by  signs.4  Total  blindness  or  mere  deafness, 
of  course,  constitutes  no  incapacity.  In  general,  we  may  add 
that  the  disqualification  of  insanity  is  often  considered  in  con- 
nection with  fraud  or  undue  influence  exercised  by  or  on  behalf 
of  the  other  contracting  party,  over  a  wreak  intellect,  for  the  sake 
of  a  fortune,  a  title,  or  some  other  worldly  advantage.  5 

Suits  of  nullity,  brought  to  ascertain  the  facts  of  insanity, 
are  favored  by  law  both  in  England  and  America ;  and  modern 
legislation  discountenances  all  collateral  disputes  involving 
questions  so  painful  and  perplexing.  "  Though  marriage  with 
an  idiot  or  lunatic  be  absolutely  void,  and  no  sentence  of 
avoidance  be  absolutely  necessary,"  says  Chancellor  Kent,  "yet, 
as  well  for  the  sake  of  the  good  order  of  society  as  for  the 
peace  of  mind  of  all  persons  concerned,  it  is  expedient  that 
the  nullity  of  the  marriage  should  be  ascertained  and  declared 
by  the  decree  of  a  court  of  competent  jurisdiction."6  In  many 
States  this  is  now  the  only  course  to  be  pursued,  such  mar- 
riages being  treated  as  voidable  and  not  void  ;  and  the  insane 
spouse  dying  before  proceedings  to  dissolve  the  marriage  are 

211.     Cf.  Waymire  v.  Jetmore,  22  Ohio  3  See  1  Bishop,  Mar.  &  Div.  5th  ed. 

St.  271.  §§  131,  132,  and  conflicting  cases  cited  ; 

And  as  to  development  of  the  malady  Elzey  v.  Elzey,  1   Houst.  308;  Steuart 

abont   the  time   of  the   ceremony,   see  v.  Robertson,  2  H.  L.  Sc.  494. 

Schouler,  Hus.  &  Wife,  §  19.  4  1  Bishop,  Mar.  &  Div.  5th  ed.  §  133, 

1  Clement  v.  Mattison,  3  Rich.  93  ;  1  and  cases  cited  ;  1  Fraser,  Dom.  Rel.  48  ; 
Bishop,  Mar.  &  Div.  5th  ed.  §  131  ;  Gore  Dickenson  v.  Blisset,   1    Dickens,  268; 
v.  Gibson,  13  M.  &  W.  623 ;  2  Kent,  Com.  Harrod  v.  Harrod,  1  Kay  &  Johns.  4. 
451,  and  authorities  cited;  Lord  Ellen-  6  Fraud  as  an  element  of  disqualify 
borough,  in  Pitt  v.  Smith,  3  Camp.  33  ;  cation  will  be  considered  post. 

Scott  v.  Paquet,  L.  R.  1  P.  C.  552.  6  2  Kent,  Com.  76. 

2  See  Gillett  v.  Gillett,  78  Mich.  184. 

3  33 


§  19  THE   DOMESTIC   RELATIONS.  [PAET   II. 

begun,  the  survivor  takes  all  the  benefits  of  a  valid  marriage 
according!}'.1  The  issue  in  all  such  cases  is,  mental  condition 
at  the  very  time  of  the  marriage.2 

§  19.  Physical  Capacity  of  Parties  to  Marriage  ;  Impotence, 
&c  —  Fourth.  The  question  of  physical  capacity  involves  an 
investigation  of  facts  even  more  painful  and  humiliating  than 
that  of  mental  capacity.  Yet  as  marriage  is  instituted,  in  part 
at  least,  for  the  indulgence  of  natural  cravings  and  with  a 
view  to  propa'gate  the  human  family,  sound  morality  demands 
that  the  proper  means  shall  not  be  wanting.  Our  law  demands 
that,  at  all  events,  the  sexual  desire  may  be  fully  gratified. 
Where  impotence  exists,  therefore,  there  can  be  no  valid  mar- 
riage. By  this  is  meant  simply  that  the  sexual  organization 
of  both  parties  shall  be  complete.  But  mere  barrenness  or  in- 
capacity of  conception  constitutes  no  legal  incapacity  in  Eng- 
land and  the  United  States,  nor  can  a  physical  defect  which 
does  not  interfere  with  copulation ;  nor  indeed  any  disability 
which  is  curable,  even  though  not  actually  cured,  unless  the 
party  disabled  unreasonably  refuses  to  submit  to  the  proper 
remedies.3  Such  refusal,  however,  puts  the  disabled  spouse 
clearly  in  the  wrong.4  The  refusal  of  carnal  intercourse  by  a 
healthy  spouse  is  quite  a  different  matter,  and  gives  rise  to 
other  inquiries  under  the  head  of  divorce;5  nor  certainly  can 
physical  incapacity  arising  from  some  cause  subsequent  to  mar- 
riage be  referred  to  the  present  subject,  the  question  being  as  to 
incapacity  at  the  date  of  marriage.6 

1  1  Rishop.Mar  &Div.  5th  ed.  §§  136-  and   cases  cited;  1   Fraser,  Dom.  Rel. 

142;   Goshen    v.    Richmond,   4   Allen,  53;  B.  v.  B.,  28  E.  L.  &  Eq.  95  ;  1  Bl. 

458  ;   Ilamaker  v.  Ilamaker,  18  111.  137  ;  Com.  440,  ?;.,  hy  Chitty  and  others  ;  Ayl. 

Williamson  v.   Williams,  3  Jones,   Eq.  Parer.  227;  Devanhagh  v.  Devanbagh, 

M6;   Wiser  v    Lockwood,  42  Vt.  720;  5  Paige,  554  ;  Essex  v.  Essex,  2  Howell, 

i   v.   Westbrook,  27  Ga.  102;    31  St.  Tr.  78G ;  Briggs  v.  Morgan,  3  Phil- 

N.    V.   Supr.    161  :    97  N.  C.  252.     As  lira.  325.     For  a  case  where  the  disa- 

to  bringing   bucTi   suit-.  Bee,  further,  1  bility  was  possibly  curable,  see  G.  v.  G., 

Bishop,  Mar.«  Div.  §§  139-142;  Schou-  L.  li',2  1'.  &  D.  287. 
ler,    Hus.  and   Wife,  §  21.     In   Maine         «  H.  v.  P.,  L.  R.  3  P.  &  D.  126. 
such   a  marriage    may    be    impeached         5  See,  further,  Schouler,   Hus.  and 

collaterally     76  Me.  H9  Wife,§22;  Cowles v.  Cowles,  1 12  Mass. 

'-  Nonncmacher  v.  Nonnemacher,  159  298. 
penn    81    634  ''  See  Morrcll  v.  Morrell,  24  N.  Y. 

I  I  Bishop,  Mar    &  Div.  §§  321-340,  Snpr.  324. 

34 


CHAP.  I.]  MARRIAGE.  §  20 

The  reader  will  find  Dr.  Lushington's  opinion  in  the  lead- 
ing case  of  Dcanc  v.  Av cling  1  sufficiently  suggestive  as  to  the 
extent  of  malformation  which  invalidates  a  marriage  on  the 
ground  of  physical  incapacity.  It  will  be  observed  that  this 
case  establishes  a  principle  which  later  cases  do  not  under- 
mine ;  namely,  that  it  is  capacity  for  fulfilling  the  conditions 
of  copulation,  and  not  of  procreation,  that  our  own  law  regards. 
We  may  add  that,  with  the  rapid  progress  of  medical  science 
during  the  present  century,  cases  of  absolute  and  incurable 
impotence  are  happily  diminishing  in  number.  It  is  reasonable 
that  suit  should  be  required  to  terminate  a  marriage  on  this 
ground.2 

§  20.  Disqualification  of  Infancy.  —  Fifth.  Infancy  may  be 
an  impediment  to  marriage ;  but  only  so  far,  on  principle,  as 
the  marrying  party,  by  reason  of  imperfect  mental  and  physi- 
cal development,  may  be  brought  within  the  reason  of  the  last 
two  rules.  Hence  we  find  that  infancy  is  not  a  bar  to  marriage 
to  the  same  extent  as  in  ordinary  contracts ;  since  minors  can- 
not repudiate  their  choice  of  husband  or  wife  on  reaching  ma- 
jority. Not  that  marriage  calls  for  less  discrimination,  for  it 
carries  with  it  consequences  far  beyond  all  other  contracts, 
involving  property  rights  of  the  gravest  import ;  but  because 
public  policy  must  protect  the  marriage  institution  against  the 
reckless  imprudence  of  individuals.  A  certain  period  is  estab- 
lished, called  the  age  of  consent,  which  in  England  is  fixed  at 
fourteen  for  males  and  twelve  for  females,  —  a  rule  adopted  from 
the  Eoman  law,  but  which,  in  this  country,  varies  all  the  way 
from  fourteen  to  eighteen  for  males  and  twelve  to  sixteen  for 
females,  according  to  local  statutes ;  differences  of  climate  and 
physical  temperament  contributing,  doubtless,  to  make  the  rule 


1  1  Robertson,  279,  298.  And  see  crease  in  the  courts  of  Great  Britain, 
modern  case  of  U.  v.  J.,  L.  R.  1  P.  &  D.  See  1  Bishop,  §  331  ;  Schouler,  Hus.  & 
460;  Stimson,  §  6113.  Wife,  §  23,  as  to  sentences  of  nullity 

2  See  for  instances:  T.  v.  M.,  L.  R.  such  cases.  The  latest  English  cases 
1  P.  &  D.  31  ;  T.  v.  D.,  L.  R.  1  P.  &  D.  interpose  no  barrier  for  a  mere  delay 
127;  Carll  v.  Prince,  L.  R.  1  Ex.246,  in  seeking  a  decree  of  nullity  for 
With  modern  facilities,  including  the  impotence.  10  P.  D.  75;  lOApp.  Cas. 
right  of  parties  to  testify  in  their  own  171. 

suits,  such  cases  appear  to  be  on  the  in- 

35 


§  20  THE   DOMESTIC    RELATIONS.  [PART    II. 

of  nature,  in  this  respect,  a  fluctuating  one.1  Marriages  with- 
out the  age  of  consent  are  as  binding  as  those  of  adults  ;  mar- 
riages within  such  age  may  be  avoided  by  either  party  on 
reaching  the  period  fixed  by  law.  And  even  though  one  of  the 
parties  was  of  suitable  age  and  the  other  too  young,  at  the 
time  of  marriage,  yet  the  former,  it  appears,  may  disaffirm,  as 
well  as  the  latter.2  Herein  is  observed  a  departure  from  that 
principle  of  law,  that  an  infant  may  avoid  his  contract  while 
the  adult  remains  bound ;  it  is  a  concession  which  the  law 
makes  in  favor  of  mutuality  in  the  marriage  compacts.  Mar- 
riages celebrated  before  both  parties  have  reached  the  age  of 
consent  may  be  disaffirmed  in  season,  either  with  or  without  a 
judicial  sentence.3  When  the  age  of  consent  is  reached,  no 
new  ceremony  is  requisite  to  complete  the  marriage  at  the 
common  law ;  but  election  to  affirm  will  then  be  inferred  from 
circumstances,  such  as  continued  intercourse,  and  even  slight 
acts  may  suffice  to  show  the  intention  of  the  parties.  If 
they  then  choose  to  remain  husband  and  wife,  they  are  bound 
forever.  Disaffirmance,  on  the  other  hand,  may  be  either 
with  or  without  a  judicial  sentence.4  Marriage  within  the  age 
of  consent  seems  therefore  to  be  neither  strictly  void  nor 
strictly  voidable,  but  rather  inchoate  and  imperfect ; 5  with, 
however,  a  reservation  by  the  ecclesiastical  law  as  to  marriage 


1  See  2  Kent,  Com.  79,  notes,  show-  guardian.     101    Ind.  317.     See  42  Ohio 

ing  the  periods  fixed  in  different  States  St.   23.     Fraudulent   representation  by 

as  the  age  of  consent.     In  the  old  States  the  infant  as  to  his  age  does  not  estop 

the    common-law    rule    generally   pre-  him  from  annulling.     Eliot  v.  Eliot,  81 

vails.     In   Ohio,    Indiana,  and   various  Wis.  205,  an  extreme  case, 
other   Western   States,  the  age  of  con-  4  I  Bishop,  Mar.  &  Oiv.  §150. 

Bent   is   raised  by    various    standards  to  6  Co.  Litt.  33  a  ;  2  Kent,  Com.  78,  79  ; 

eighteen    or  even  twenty-one  for  males,  1   Bishop,  Mar.  &  Div.  5th  ed.   §§143- 

ari  I  fourteen   nr  even   eighteen    for  fe-  153,  and  cases  cited;  1  Bl.  Com.  436; 

nulls      Sec  Stimson,  §  6110.  1  Eraser,  Dom.  Rel.  42;  Barton  v.  Her- 

-  Co.    Litt.    79,   and    Harg.    n.    45;  vey,  1   Gray,   119;  Fitzpatrick   v.  Fitz- 

l  EastfP.C.468;  1  Bishop,  Mar.  &  Div.  patrick,  6  Nev.   63.      See   Shafher  v. 

5th   ed.   §   149.     But    it  is   not  certain  State,  20  Ohio,  1  ;  86  Wis.  498;  65  Vt. 

that    a   party  of    competent   age   may  663 ;    contra,  Goodwin  v.  Thompson,  2 

disaffirm    equally   with    the   party    in-  Iowa,  329  ;  Aymar  v.  Roff,  3  Johns.  Ch. 

competent       People  v.  Slack,  15  Mich.  49,  as  to  the  invalidity  of  such  marriage, 

193  unless  confirmed  by  cohabitation  after 

•The   complaint    should    be    in    the  reaching  the  statutory  age.     Local  stat 

name   of    the    infant,   and    not  of   his  utes  affect  this  whole  subject. 

86 


CHAP.  I.]  MARRIAGE.  §  21 

with  an  infant  below   seven  years,  which  is   treated  as  alto- 
gether null.1 

§  21.  Disqualification  of  Prior  Marriage  Undissolved  ;  Polyg- 
amy ;  Bigamy.  —  Sixth,  as  to  the  impediment  of  prior  marriage 
undissolved.  It  is  a  well-established  rule  in  civilized  countries 
that  marriage  between  parties,  one  of  whom  is  bound  by  an  ex- 
isting marriage  tie,  is  not  only  void,  but  subjects  the  offenders 
to  criminal  prosecution.'2  Polygamy,  or  bigamy  as  it  is  often 
termed,  —  since  the  common  law  of  England  could  scarcely  con- 
ceive of  such  conjunctions  carried  beyond  a  double  marriage,  —  is 
discarded  by  all  Christian  communities.  It  was  tolerated,  but 
never  sanctioned,  in  certain  territory  of  the  United  States.  The 
fundamental  doctrine  of  Christian  marriage  is  that  no  length  of 
separation  can  dissolve  the  union,  so  long  as  both  parties  are 
actually  living,  even  though  lapse  of  time  should  raise  a  reason- 
able supposition  of  death.  But  to  render  the  second  marriage 
void  at  law,  the  first  should  have  been  valid  in  all  respects.3 
Some  of  the  harsher  features  of  the  old  law  have  been  softened 
in  our  own  legislation  ;  and  statutes  are  not  uncommon  which 
possibly  extend  facilities  for  divorce  from  the  old  relation,  and 
in  any  event  protect  the  offspring  of  a  new  marriage  contracted 
erroneously,  but  in  good  faith,  by  parties  who  had  reason  to 
believe  a  former  spouse  dead.4  But  such  re-marriage  in  bad 
faith  and  without  due  inquiry  finds  no  favor.5  So,  too,  polygamy 
in  fact  is  relieved  of  its  penal  consequences  as  concerns  parties 
not  guilty  of  polygamy  in  intention  ;  but  a  certain  period  must 
elapse  —  usually  seven  years  —  before  death  can  be  presumed 
from  one's  mere  continuous  absence  without  being  heard  from. 
Such  was  one  of  the  provisions  in  the  English  statute  passed 
to  make  bigamy  a  civil  offence,  in  the  reign  of  James  I.,6  which 
also  exempted  from  punishment  for  bigamy  persons  remarried, 

1  2  Burn,  Ec.  Law,  434  ;  1  Bishop,  Jnr.  174;  Patterson  v.  Gaines,  6  How. 
Mar.  &  Div.  §  147.  (U.  S.)  550. 

2  Cro.  Eliz.  858;  1  Salk.  121  ;  2  4  See  2  N.  Y.  Rev.  Stat.  p.  139,  §§  6, 
Kent,  Com.  79,  and  notes;  1  Bishop,  7;  Mass.  Gen.  Sts.  c.  107,  §§  4,  30; 
Mar.  &  Div.  §§  296-303,  and  authorities  Stimson,  Am.  Stat.  Law,  §  6116. 

cited  ;  Shelf.  Mar.  &  Div.  224 ;  Hyde  v.  6  Gall  v.  Gall,  114  N.  Y.  109. 

Hyde,  L.  R.  1  P.  &  D.  130.  6  Stat.  1.  Jac.  I.  c.   11,    1604.     See 

3  Bruce  v.  Burke,  2  Add.  Ec.  471  ;  Queen  v.  Lumley,  L.  R.  1  C.  C.  196; 
2  Eng.  Ec.  381  ;  Reg.  v.  Chadwick,  12  Queen  v.  Curgerwen,  L.  R.  1  C.  C.  1. 

37 


§21 


THE   DOMESTIC    RELATIONS. 


[PART   II. 


during  the  lifetime  of  the  former  spouse,  after  a  divorce, 
sentence  of  nullity,  or  disaffirmance  on  reaching  age  of  consent. 
Similar  statutes  for  the  punishment  of  bigamy,  with  similar 
reservations,  are  enacted  in  this  country ;  but  in  England  and 
the  United  States  some  defects  of  the  original  legislation  are 
now  cured,  and  divorce  from  bed  and  board  would  not  exempt 
an  offender  from  prosecution.1  Polygamy,  with  such  exceptions, 
remains  an  indictable  offence.  One  of  its  less  obvious  evils  — 
though  not  the  least  important  when  polygamy  is  regarded  as  a 
legalized  institution  in  a  free  country  —  is  that  the  patriarchal 
principle  which  it  introduces  is  thoroughly  hostile  to  free  in- 
stitutions ;  and  this  fact  was  pointed  out  many  years  ago  by  one 
of  our  best  writers  on  political  ethics.2 

Nor  is  a  new  marriage  entered  into  by  one  spouse  in  good 
faith,  and  in  full  but  erroneous  belief  that  the  other  spouse  is 
dead,  valid  even  after  the  lapse  of  the  statutory  absence ;  such 
parties  are  not  free  to  marry  again,  but  only  relieved  of  the 
worst  consequences.3  One  who  innocently  marries  another  hav- 
ing an  undivorced  spouse  may  have  the  colorable  marriage  de- 
clared void  independently  of  all  divorce  legislation.4 


1  In  New  York  the  period  of  ab- 
sence is  five  years ;  in  Ohio,  three 
years;  in  Massachusetts,  seven  years, 
but  with  a  special  relaxation  of  the 
penalty.  Still  further,  see  2  Kent, 
Com.  79,  and  notes.  See  also  Stats.  9 
Geo.  IV.  c.  31  ;  24  &  25  Vict.  c.  100  ;  1 
Bishop,  §  297;  Stimson,  §  6112.  Legi- 
timating statutes  are  to  be  found  in 
numerous  States  on  behalf  of  the  off- 
spring of  innocent  marriages  of  this 
kind,     l  Bishop,  §  .301  ;  cases  infra. 

2  2  Lieber,  Pol.  Ethics,  9,  cited  in 
note  to  2  Kent,  Com.  81. 

A-  to  prosecutions  fur  bigamv,  see 
Kopke»,  People,  43  Mich.  41;  Reeves 
>■  Reeves,  :>i  111  332;  Qneen  v.  Allen, 
I--  I'    i  C.  C.  367, and  other  cases  cited ; 

Schouler,    Fins,    and     Wife,   §   25;    also 

"Bigamy"  in   Bishop  or  Wharton  on 
Criminal  Law. 

'■!         '    '  i lass,  114  Mass.  563,  and 
cited;  Williamson  v.  Parisien,  l 
38 


Johns.  Ch.  389  ;  Miles  v.  Chilton,  1  Rob- 
ertson, 684;  Spicer  v.  Spicer,  16  Abb. 
Pr.  n.  s.  112;  1  Bishop,  Mar.  &  Div. 
§  299 ;  Webster  v.  Webster,  58  N.  H.  3 ; 
124  Penn.  St.  646.  Such  marriage, 
under  Massachusetts  statutes,  may  be 
annulled  by  a  sentence  containing  (in 
order  to  make  children  begotten  before 
the  commencement  of  the  suit  legiti- 
mate) the  statement  that  it  was  con- 
tracted in  good  faith  and  with  the  full 
belief  of  the  parties  that  the  absent 
spouse  was  dead.  Glass  v.  Glass,  supra. 
Randlett  v.  Rice,  141  Mass.  385,  pre- 
sented curious  facts  Lawful  compe- 
tence to  marry  again  results,  however, 
under  some  local  statutes,  from  such 
absence.  Strode  v.  Strode,  3  Bush,  227. 
Where  proceedings  for  annulling  are 
discont  iniK'd  upon  the  death  of  such  for- 
mer spouse,  the  parties  may  marry  again. 
Bneathen  v.  Sneathen,  104  Mo.  201. 
4  Fuller  v.  Fuller,  33  Kan.  582. 


CHAP.  I.]  MARRIAGE.  §  23 

§  22.  Same  Subject  ;  Impediments  following  Divorce.  —  Un- 
der this  same  head  may  be  considered  a  disqualification  intro- 
duced into  some  parts  of  this  country  by  legislative  enactments; 
namely,  the  impediment  which  follows  divorce.1  A  divorce  a 
vinculo  should  on  general  principles  leave  both  parties  free  to 
marry  again.  But  such  is  not  always  the  case.  Thus,  in  Ken- 
tucky, the  person  injured  might  not  marry  again  before  the  ex- 
piration of  two  years  from  the  decree  of  dissolution.2  And  in 
several  States  the  guilty  party  is  prohibited  from  marrying  again 
during  the  lifetime  of  the  innocent  spouse  divorced,  —  a  pro- 
vision of  law  seemingly  more  judicious  to  apply  in  terrorem  by 
way  of  prevention  than  as  a  suitable  method  of  punishment.3 
In  Scotland  there  is  a  peculiar  but  not  unreasonable  law,  which 
forbids  the  guilty  party  after  divorce  from  marrying  the  par- 
ticeps  criminis ;  this  was  framed  evidently  to  defeat  collusive 
practices  between  persons  desiring  to  put  away  an  outstanding 
obstacle  to  their  own  union.4  A  divorce  nisi  is  of  course  only 
partial ;  and  a  marriage  solemnized  before  the  absolute  decree 
can  take  effect  is  void.5 

§  23.  Force,  Fraud,  and  Error,  in  Marriage.  —  Seventh.  All 
marriages  procured  by  force  or  fraud,  or  involving  palpable  error, 
are  void ;  for  here  the  element  of  mutual  consent  is  wanting, 
so  essential  to  every  contract.6     The  law  treats  a  matrimonial 


1  1  Bishop,  Mar.  &  Div.  5th  ed.  bition,  parties  went  into  New  Jersey 
§§  304-307  ;    Schouler,    Hus.    &    Wife,  or  Connecticut  for  such  purpose.     lb. 

§  26  ;  Stimson,  §  6241.  4  1  Eraser,  Dom.  Rel.  82.     In  a  few 

2  Cox  v.  Combs,  8  B.  Monr.  231.  of  the  United  States,  legislation  is  found 
Mason  v.  Mason,  101  Ind.  25,  treats  a  to  the  same  effect.  Stimson,  Am.  Stat, 
marriage  in  violation  of  such  inhibition  Law,  §  6241. 

as   voidable    only,    so  that    one   party  6  Cook   v.    Cook,    144    Mass.    163. 

may  be  estopped  to  deny  the  validity  Such  a  marriage  may  be  annulled  ac- 

in  collateral  proceedings.     And  see  152  cordingly. 

Mass.  533.  6  2  Kent,  Com.  76, 77 ;  1  Bishop,  Mar. 

3  See  Parke  v.  Barron,  20  Ga.  702;  &  Div.  5th  ed.  §§  164-215;  Harford  v 
Clark  v.  Cassidy,  62  Ga.  407 ;  53  Barb.  Morris,  2  Hag.  Con.  423 ;  4  Eng.  Ec. 
454.  Such  prohibitions  are  sometimes  575 ;  Countess  of  Portsmouth  v.  Earl 
evaded  by  going  into  another  neighbor-  of  Portsmouth,  1  Hag.  Ec.  355 ;  3  Eng. 
ing  State,  and  there  contracting  what  Ec.  154  ;  Scott  v.  Shufeldt,  5  Paige,  43  ; 
by  local  law  is  a  valid  marriage.  Dalrymple  v.  Dalrymple,  2  Hag.  Con. 
Thorp  v.  Thorp,  90  N.  Y.  602  ;  92  N.  Y.  54,  104  ;  4  Eng.  Ec.  485  ;  Keyes  v. 
521  ;  86  N.  Y.  18.  And  see  post,  §  222  n.  Keyes,  2  Fost.  553. 
Notwithstanding  a  New   York   prohi- 

39 


§  23  THE   DOMESTIC   RELATIONS.  [PART   II. 

union  of  this  kind  as  absolutely  void  ah  initio,  and  permits  its 
validity  to  be  questioned  in  any  court ;  at  the  option,  however, 
of  the  injured  party,  who  may  elect  to  abide  by  the  conse- 
quences when  left  free  to  give  or  withhold  assent.  Force  im- 
plies a  physical  constraint  of  the  will ;  fraud,  some  deception 
practised,  whereby  an  unnatural  state  of  the  will  is  brought 
about.1  Cases  of  palpable  error,  which  are  very  rare,  usually 
contain  one  or  both  of  these  ingredients. 

What  amount  of  force  is  sufficient  to  invalidate  a  marriage  is 
a  question  of  circumstances.  Evidently  the  same  test  could  not 
apply  to  the  mature  and  the  immature,  to  the  strong  and  the 
weak,  to  man  and  to  woman.  The  general  rule  is  that  such 
amount  of  force  as  might  naturally  serve  to  overcome  one's  free 
volition  and  inspire  terror  will  render  the  marriage  null.2  And 
where  the  party  employing  force  sustains  a  superior  relation 
of  influence,  or  a  post  of  confidence  affording  him  special  oppor- 
tunities which  he  chooses  to  abuse,  this  circumstance  carries 
great  weight.  Thus  in  Harford  v.  Morris,  where  one  of  the 
guardians  of  a  young  and  timid  school-girl,  having  great  influence 
and  authority  over  her,  took  her  to  a  foreign  country,  hurried 
her  from  place  to  place  and  then  married  her  without  her  free 
consent,  the  marriage  was  set  aside;3  and  similar  consequences 
attended  more  recently  the  marriage  of  a  young  school-girl  to 
her  father's  coachman,  who  pursued  his  scheme  while  taking 
her  out  to  ride.4  So,  too,  where  a  man  forced  a  woman  who  was 
in  pecuniary  distress  to  marry  him  by  operating  on  her  fears  of 
exposure  and  ruin.5 

A  marriage  by  compulsion  is  procured  when  an  adult  under 
illegal  arrest  is  forced  to  marry ;  and  so,  probably,  though 
the  arrest  were  legal,  if  malicious  circumstances  are  manifest.6 

1    1  Fraser,  Dom.  Bel.  234.  ton,  1  Day,  111  ;   1  Bishop,  Mar.  &  Div. 

-  Shelf.  Mar  &  Div.  213;   1   Bishop,  5th  ed.  212. 

Mar.  &  Div.  r>th  ed.  §  211.  A  man  is  sometimes  forced  into  a 

'■'  2  Hag.  Con.  42'i;  4  Eng.  Ec.  575.  marriage  which   ought  to  be  annulled. 

■'   Lyndon  <\  Lyndon,  69  111.  4.3.  See  Bassctt  v.  Bassett,  9  Bush,  696.     In 

■'■  Bcott  v.  Sebright,  12  P,  1).  21.  Willard  v.  Willard,  6  Baxter,  297,  be- 

fi   Reg     V.   Orgill,    '.)    Car.  &   1*.    80;  fore  testimony  was  taken,  an  allegation 

Sonic  r.  I'.oimcy,  .'17  Me.  12H;   Collins  i\  of    duress    was    sustained     against    de- 

Collins,  2   Brews.  (Pa.)  515 ;  Barton  v.     murrer.     Here  the  man  claimed  that 
Morris,   15  Ohio,  408;  Benton  v.  Ben-     the  woman's  brother  seized  him  ou  tho 

40 


CHAP.  I.]  MARRIAGE.  §  23 

But  if  a  single  man  under  legal  arrest  marries,,  by  advice  of  the 
officer  or  magistrate,  the  woman  whom  he  has  seduced  or  got 
with  bastard  offspring,  in  order  to  escape  a  just  prosecution, 
meaning  a  prosecution  for  probable  cause  and  not  a  malicious 
one,  the  law  disinclines  to  annul  such  a  marriage  for  duress  in  case 
of  an  adult,  but  will  favor  a  presumption  of  honest  repentance 
on  his  part,  and  hold  him  bound;1  substantial  justice  being 
thereby  done  to  the  utmost,  and  the  lesser  scandal  to  society 
permitted  in  order  to  avert  the  greater. 

As  to  fraud,  in  order  to  vitiate  a  marriage,  it  should  go 
to  the  very  essence  of  the  contract.  But  what  constitutes 
this  essence  ?  The  marriage  relation  is  not  to  be  disturbed 
for  trifles,  nor  can  the  cumbrous  machinery  of  the  courts 
be  brought  to  bear  upon  impalpable  things.  The  law,  it 
has  been  well  observed,  makes  no  provision  for  the  relief 
of  a  blind  credulity,  however  it  may  have  been  produced.2 
Fraudulent  misrepresentations  of  one  party  as  to  birth,  social 
position,  fortune,  good  health,  and  temperament,  cannot  there- 
fore vitiate  the  contract.  Caveat  emptor  is  the  harsh  but 
necessary  maxim  of  the  law.  Love,  however  indispensable 
in  an  aesthetic  sense,  is  by  no  means  a  legal  essential  to 
marriage ;  simply  because  it  cannot  be  weighed  in  the  scales 
of  justice.  So,  too,  all  such  matters  are  peculiarly  within  the 
knowledge  of  the  parties  themselves,  and  they  are  put  upon 
reasonable  inquiry.3 

Not  even  does  the  concealment  of  previous  unchaste  and 
immoral  behavior  in  general  vitiate  a  marriage;  for  although 
this    seems   to  strike    into   the   essence    of    the    contract,   yet 

highway,  and  forced  him  to  marry  her,  24  ;  42  N.  J.  Eq.  55  ;  52  Ark.  425.  In 
and  that  as  soon  as  the  duress  was  over  Smith  v.  Smith,  51  Mich.  607,  the  mar- 
he  escaped  ;  also  that  the  woman  had  a  riage  was  annulled  where  the  party  was 
child  three  months  afterwards.  Duress  a  "  boy  of  eighteen  and  the  woman  much 
was  claimed  by  the  husband  in  Vroom  older." 

v.  Marsh,  29  N.  J.  Eq.  15 ;  but  the  court  2  Lord  Stowell,  in  Wakefield  v.  Mac- 
allowed  alimony  pendente  lite  to  the  wife,  kay,  1  Phillim.  137;  2  Kent,  Com.  77;  1 
she  denying  the  charge.  Bishop.  Mar.  &  Div.  5th  ed.  §§  1G6-168. 
1  Jackson  v.  Winne,  7  Wend.  47 ;  3  Concealment  by  the  woman  that 
Sickles  n.  Carson,  26  N.  J.  Eq.  440;  she  was  a  kleptomaniac  —  by  this  not 
Bounett  v.  Ilonnett,  33  Ark.  156;  State  meaning  insanity  —  was  held  no  fraud 
v.  Davis,  79  N.  C.  603 ;  Johns  v.  Johns,  as  to  essentials,  in  Lewis  v.  Lewis,  44 
44  Tex.  40;  Williams  v.  State,  44  Ala.  Minn.  124. 

41 


§  23  THE   DOMESTIC   RELATIONS.  [PART    II. 

public  policy  pronounces  otherwise,  and  opens  marriage  as 
the  gateway  to  repentance  and  virtue.1  If  the  profligate 
continue  a  profligate  after  marriage,  the  divorce  laws  afford  a 
means  of  escape  to  the  deluded  victim.  Still,  as  this  doc- 
trine seems  to  bear  hard  upon  innocent  persons  marrying  in 
good  faith  and  with  misplaced  confidence,  it  is  applied  not 
without  some  limitations.  Thus  it  is  held  in  Massachusetts 
that  where  a  woman,  pregnant  by  another  man  at  the  time  of 
the  nuptials,  bears  a  child  soon  after  to  an  innocent  husband, 
the  marriage  may  be  avoided  by  him ;  for  she  has  thereby  not 
only  inflicted  upon  him,  by  deception,  the  grossest  possible 
moral  injury,  but  subjected  them  both  to  scandal  and  ill- 
repute.2  The  same  court,  however,  has  taken  heed  not  to 
press  this  exception  far,  refusing  to  allow  one  to  shake  off 
the  obligations  he  has  contracted  with  a  woman  whom  he 
knew  before  marriage  to  be  with  child,  and  in  fact  had 
himself  debauched,  notwithstanding  he  married  upon  the  faith 
of  her  previous  assurances  that  her  pregnancy  was  by  him, 
and  was  undeceived  by  the  time  the  child  came  into  the 
world.3  Furthermore,  if  a  man  marries  any  woman  whom 
he  knows  to  be  unchaste  and  pregnant,  it  is  his  own  folly 
if  he  places  implicit  confidence  in  any  of  her  statements;4 
and  if  he  was  unchaste  with  her  himself,  he  debars  himself 
from  complaining  that  he  found  her  pregnant  by  another.5 
But  whenever  an  innocent  man  marries  a  woman,  supposing 
her,  with  reason,  to  be  virtuous,  and  she  conceals  her  preg- 
nancy from  him,  the  subsequent  production  of  another  man's 
child  so    unpleasantly  complicates  the   marriage   relation  that 


1  Bishop,  Mar    &  Div.   §§  170,   170;  8  Foss  ?'.  Foss,  12  Alien,  20.     Tt  was 

Rogers,  Ec.  Law,  2d  ed.  644;  1  Frnser,  here  suggested  by  the  court  that  the 

Dora,    Rel.  2.'!1  ;   Ayl.   Parer,  362,  863;  man  might  have  taken  medical  or  other 

Swinb.    Spousals,   2d   ed.   i.r)2;  Best  v.  advice  before  marriage,  instead  of  rely- 

I:        I  Add.  Ec.  411 ;  2  Eng.  Ec.  158;  ing  upon  the  woman's  word.     As  to  such 

Leavitt  v.  Leavitt,  13  Mich.  452;  Wier  statute  cause  of  divorce,  see  Schonler, 

p.  Still,  31   Iowa,  107.  II us.  &  Wife,  §  530. 

-  Reynolds  v.  Reynolds,  3  Allen,  605.         4  Crehore  v.  Crehore,  97  Mass.  3.30. 
'  o   Baker  >•.   Baker,  13  Cal.  87;         G  Seilheimer  v.  Seilheiraer,  40  N.J. 

Montgomery  v    Montgomery,  3  Barb.  Eq.  412;  12  Allen,  26. 
(  b   132;  Wright, 630 ;  Allen's  Appeal, 
99  Penn.  St.  196. 

42 


CHAP.  I.]  MARRIAGE.  §  23 

he  ought  to  be  allowed  his  exit  if  he  so  desires,  both  in  justice 
to  himself  and  because  the  woman  knew  the  risk  she  ran  of 
bringing  the  parental  relation  to  shame  by  marrying,  and 
chose  to  incur  it.  In  short,  while  marriage  may  be  accepted 
by  any  one  whose  past  life  has  been  dissolute,  as  the  portal 
to  a  new  and  honest  career,  for  which  reason  concealment  of 
the  past  cannot  legally  be  predicated  of  either  party  as  an 
essential  fraud,  we  apprehend  that  the  woman  who  brings 
surreptitiously  to  the  marriage  bed  the  incumbrance  of  some 
outside  illicit  connection  introduces  a  disqualification  to  the 
union  as  real  as  the  physical  impotence  of  a  man  would  be, 
resulting  from  his  own  lasciviousness. 

As  to  error,  it  may  be  said,  as  in  fraud,  that  the  error 
should  reach  the  essentials ;  and  Chancellor  Kent  justly  ob- 
serves that  it  would  be  difficult  to  find  a  case  where  simple 
error,  without  some  other  element,  would  be  permitted  to  va- 
cate a  marriage.1  There  is  an  English  case  in  point,  where  a 
man  courted  and  afterwards  married  a  young  lady,  believing 
her  to  be  a  certain  rich  widow,  whom  he  had  known  only 
by  reputation.  She  and  her  friends  had  countenanced  the 
deception.  It  was  held,  nevertheless,  that  the  marriage  must 
stand.2  But  the  palpable  substitution  of  some  other  individual 
for  the  person  actually  accepted  and  intended  for  marriage  may 
properly  be  repudiated  by  the  victim  to  the  fraud.3  And  some 
cases  have  gone  even  farther,  as  where  a  scoundrel  palms  him- 
self off  as  a  certain  individual  of  good  repute;4  though,  gen- 
erally speaking,  deception  as  to  name  is  not  regarded  as  more 
fatal  than  deception  concerning  character  or  fortune. 

The  element  of  imperfect  consent  is  readily  associated  with 
cases  of  the  present  class.  Thus,  if  a  person  is  unwittingly 
entrapped  into  a  marriage  ceremony,  not  meaning  nor  afford- 
ing reason  for  the  other   party  to   believe   that  it   should    be 

1  2  Kent,  Com.  77.     See  Lord  Camp-  Celebrated    Trials,   63,    78,   and    in    1 
bell,  in  Reg.   v.  Millis,  10  CI.  &  F.  534,  Bishop,  Mar.  &  Div.  5th  ed.  §  204. 
785;    1    Bishop,  Mar.  &  Div.   5th   ed.  3  Fiction    supplies    such    instances, 
§  207 ;   Clowes  v.  Clowes,  3  Curt.  Ec.  as  in  Scott's  novel,  St.  Ronan's  Well 
185,  191.  And  see  2  Kent,  Com.  77;  1   Bishop, 

2  Feildiug's  Case,  cited  in  Burke's  §  207. 

4  Rex  v.  Burton,  3  M.  &  S.  537. 

43 


§  24  THE    DOMESTIC    RELATIONS.  [PAIIT   II. 

binding,  this  marriage  may  be  repudiated.1  And  in  general 
a  mock  marriage  in  jest  is  no  marriage,  though  a  dangerous 
sport.2 

§  24.  Force,  Fraud,  and  Error  :  Subject  continued.  —  In  most 
of  the  reported  cases  of  force,  fraud,  and  error,  two  or  more  of 
these  elements  are  united  ;  and  frequently  another  distinct  im- 
pediment appears,  such  as  tender  years  on  the  part  of  the 
injured  party;  or,  with  regard  to  the  offender,  the  suppression  of 
material  facts  relative  to  some  former  marriage,  or  to  his  own 
mental  or  physical  incapacity  ;  or  some  other  cause  of  nullity 
is  shown  by  the  evidence.  In  the  reported  cases,  where  the 
complainant  was  successful,  some  unprincipled  man  has  gener- 
ally sought  to  gain  undue  advantage  from  the  person  and  for- 
tunes of  one  whose  feebler  will  or  overstrained  fears  rendered 
her  an  easy  prey;  it  rarely,  if  ever,  appears  that  such  force  or 
fraud  has  led  to  a  reasonable  and  well-assorted  match.  Such 
unequal  alliances  need  find  favor  from  no  tribunal.3 

All  marriages  of  this  sort  are  binding  without  further  cere- 
mony, provided  the  injured  party  sees  fit  to  affirm  it  after  all 
constraint  is  removed,  or,  in  other  words,  to  perfect  the  con- 
sent ;  but  no  such  freedom  of  choice  seems  to  be  left  to  the 
offending  party.  Hence  this  sort  of  marriage  seems  neither 
void  nor  voidable  in  the  legal  acceptation ;  but  rather  inchoate 
or  incomplete  until  ratified,  though  void  if  the  injured  choose 
so  to  treat  it.  Where  consummation  never  followed  the  nup- 
tials, the  courts  are  the  more  readily  disposed  to  set  aside  the 
match  ;4  hut  in  any  event  copulation,  with  knowledge  of  the 
fraud,  and  after  removal  of  all  constraint,  is  an  effectual  bar  to 
relief.5     Here  as  in  all   analogous    instances    the   complainant 


i  Clark  v.  Field,  13  Vt.  460.  v.  Cobb,  3  Jones,  Eq.  456;  Scott  i\  Se- 
-  McC'lurg  o.  Terry,  21  N.  J.  Eq  bright,  12  P.  D.  21. 
225.  See  post,  §  20.  '  Lyndon  '•.  Lyndon,  69  Til.  43  ;  Rob- 
•  See  Heffer  v.  Heffer,  3  M.  &  S.  ertson  r.  Cole,  12  Tex.  356;  Cameron 
265  Rex  v.  Barton,  3  M.  &  S.  537;  v.  Malcolm,  supra. 
Swift  v.  Kills,  3  Knapp,  257;  Nace  '•.  s  1  Bishop,  Mar.  &  Div.  5th  ed. 
Boyer,  G  Casey,  99;  Robertson  '■.  Cole,  §§  214,215;  1  Burge,  Col.  &  For.  Laws, 
12  Tex.  356  Cameron  v  Malcolm,  137;  l  Fraser,  Dom.  Rel.  229;  Scott  v. 
M«ir  12586,  cited  i  Bishop,  §  199  i  Shufeldt,  5  Paige,  43;  Leavitt  v.  Lear- 
Lyndon  v.   Lyndon,  69  111.  43;  Powell  itt,  13  Mich.  452;  Hampstead  v.  Plais- 

fcOW,  41)  N.  II.  84. 

44 


CHAP.  I.]  MARRIAGE.  §  25 

should  appear  not  to  have  yielded  knowingly  and  willingly  to 
the  situation.1 

The  issue,  we  may  add,  is  between  the  offender  and  the  injured 
party,  and  third  persons  have  no  right  to  interfere,  even  though 
it  be  alleged  that  there  was  intent  to  defraud  them  in  their  own 
property  interests.2  In  fact,  marriage  stands  or  falls  by  public 
permission  with  reference  only  to  the  marriage  parties ;  and 
wherever  they  have  legally  assumed  the  relation  as  one  agree- 
able to  themselves,  outsiders  cannot  meddle  with  the  status 
from  outside  considerations.  Where,  too,  a  marriage  has  been 
affected  through  the  fraudulent  conspiracy  of  third  persons,  the 
rule  is  that,  unless  one  of  the  contracting  parties  is  cognizant  of 
the  fraud,  the  marriage  is  perfect ;  but,  if  cognizant,  it  is  to  be 
deemed  the  fraud  of  such  party  and  treated  accordingly.3 

§  25.  Essential  of  Marriage  Celebration. — Eighth.  We  are 
now  brought  to  the  important  subject  of  the  formal  marriage 
celebration.  Here  there  is  a  wide  difference  noticeable  between 
general  principles  and  established  practice.  We  are  to  consider 
this  topic,  then,  in  two  separate  aspects:  (1)  as  to  maniage 
observance  in  the  absence  of  civil  requirements;  (2)  as  to  mar- 
riage observance  under  the  statutes  now  in  force  in  England  and 
America. 

It  is  to  be  premised,  however,  by  way  of  enlarging  upon 
the  idea  of  perfect  and  imperfect  consent  suggested  under  the 
last  head,  that  some  form  of  marriage  promise,  some  ceremony, 
however  slight,  has  always  been  deemed  essential  to  the  valid- 
ity of  marriage.  The  common  language  of  the  books  is  that,  in 
the  absence  of  civil  regulations  to  the  contrary,  marriage  is  a 
contract,  and  nothing  but  mutual  consent  is  required.  And  the 
old  maxim  of  the  Roman  law  is  quoted  to  support  this  view  : 
Nvptias  non  concvbitus,  seel  consensus,  facit.*    But  is  there  not  an 

1  A   weak,    hysterical    woman    was  riage  was  never  consummated.     Cooper 

wooed  by  a  younger  cousin  who  wanted  v  Crane  (1891),  P.  369. 

her  for  her  money,  and  who  took  her  2  McKinney  v.  Clarke,  2  Swan,  321. 

into  a  church  and   threatened  to  blow  3  Sullivan  v.  Sullivan,  2  Hag.  Con. 

his  own  brains  out  if  she  did  not  marry  238,  246  ;  Rex  v.  Minshull,  1  Kev.  &  M. 

him  then  and  there.     The  fact  that  she  277  ;  1  Bishop,  Mar.  &  Div.  §  173  et  seq.; 

went   through    the    ceremony   without  Barnes  v.  Wyethe,  28  Vt.  41  ;  Bassett  v. 

any  signs  of  unwillingness  was  taken  Bassett,  9  Bush,  696. 

Btrongly  against  her,  though  the  mar-  4  See  2  Kent,  Com.  86,  87  ;  Co  Litt. 

45 


§  26  THE   DOMESTIC   RELATIONS.  [PART   II. 

ambiguity  in  the  use  of  such  language  ?  For  it  is  material  to 
ask  whether  consensus,  or  consent,  is  used  in  the  sense  of  simple 
volition  or  an  expression  of  volition.  We  maintain  that  the  lat- 
ter is  the  correct  legal  view ;  and  that  it  should  be  said  that  the. 
law  requires  in  such  cases  a  simple  expression  of  mutual  consent, 
and  no  more.  For  the  very  definition  of  marriage  implies  that 
there  should  be  not  only  the  consenting  mind,  but  an  expression 
of  the  consenting  mind,  by  words  or  signs,  which  expression  in 
proper  form  constitutes  in  fact  the  marriage  agreement.  It  is 
in  this  sense  that  we  shall  apply  the  terms  formed  and  informal 
to  marriage  in  the  following  sections. 

Here,  however,  we  mean  to  distinguish  between  the  promise 
of  marriage  in  the  future,  such  as  involves  a  mere  engagement 
to  marry  and  renders  one  liable  in  breach  of  promise  suits ; 
and  such  promises  as  justify  the  inference  that  there  is  a 
marriage. 

§  26.  Same  Subject;  Informal  Celebration.  —  (1)  To  consti- 
tute a  marriage,  then,  where  there  are  no  civil  requirements,  — 
or,  in  other  words,  to  constitute  an  informal  marriage,  —  words 
clearly  expressing  mutual  consent  are  sufficient  without  other 
solemnities.  Two  forms  of  consent  are  mentioned  in  the  books : 
the  one,  consent  per  verba  de  prccsenti,  with  or  without  consum- 
mation ;  the  other  consent  per  verba  de  futuro,  followed  by  con- 
summation.1 Some  writiers  have  added  a  third  form  of  consent, 
—  by  habit  and  repute;  but  this  is,  very  clearly,  nothing  more 
than  evidence  of  consummated  marriage  amounting  to  a  pre- 
sumption conclusive  enough  for  the  purpose  at  hand.2  So,  too, 
there  is  reason  to  suppose  that  the  marriage  per  verba  de  futuro 
is  of  the  same  sort  as  the  former ;  marriage  per  verba  de  prccsenti 
constituting  the  only  real  marriage  promise,  while  consummation 
following  de  fiduro  words  of  promise  raises  simply  a  legal 
presumption,    not    probably  conclusive,  that  words  de  prccsenti 

33  a;  1  Bishop,   Mar.  &  Div.  §§218-         2  Lord   Selhorne,  in  the  case  of  De 

207.  Thoren   v.   Attorney-General,    1    II.    L. 

1  Swinb   Spousals,  2d  ed.  8 ;  2  Burn,  App,  G86,  confirms  this  view.     See  also 

Ec.  La  ■,  Phillim.  ed.  455  c;  Lord  Cot-  Breadalbaue's  Case,  L.  R.  1  H.  L.  Sc. 

tenham,  in   Stewart  v.  Menzies,  2  Hob.  182. 
App.  Cas    547  j  i  Bishop,  Mar.  &  Div. 
5th  ed.  §  227. 

46 


CHAP.  I.] 


MARRIAGE. 


26 


afterwards  passed  between  the  parties.  The  copula  is  no  part 
of  the  marriage ;  it  only  serves  to  some  extent  as  evidence  of 
marriage.1  Consensus,  non  concubitus,  is  the  maxim  of  the  civil, 
ecclesiastical,  and  common  law  alike.2 

Informal  celebration  constitutes  marriage  as  known  to  nat- 
ural and  public  law.  The  English  canon  law,  as  it  stood 
previous  to  the  Council  of  Trent,  the  law  of  Scotland,  and 
in  various  European  countries,  the  law  of  some  of  the  United 
States,  and  perhaps  the  common  law  of  England,  all  dispense 
with  the  ceremonial  observances  of  formal  marriage.3  Informal 
marriage  is  to  be  sustained  on  the  theory  that  an  institution  of 
such  fundamental  importance  to  our  race  ought  to  be  good  inde- 
pendently of,  and  prior  to,  the  formal  requirements  which  hu- 
man government  imposes  at  an  advanced  stage  of  society.  But, 
as  we  shall  see,  the  marriage  acts  now  in  force  in  England  and 
many  of  the  United  States  render  certain  solemnities,  religious 


1  Port  v.  Port,  70  111.  484  ;  1  Bishop, 
Mar.  &  Div.  5th  ed.  §§  228,  254 ;  Jack- 
son v.  Winne,  7  Wend.  47  ;  Dumaresly 
v.  Fishly,  3  A.  K.  Marsh.  368,  372; 
Peck  v.  Peck,  12  R.  I.  485. 

2  Dalrymple  v.  Dalrymple,  2  Hag. 
Con.  54 ;  4  Eng.  Ec.  485,  489 ;  Shelf. 
Mar.  &  Div.  5-7.  But  the  California 
Civil  Code  now  provides  that  consent 
alone  will  not  constitute  marriage;  it 
must  be  followed  by  a  solemnization,  or 
by  a  mutual  assumption  of  marital 
rights,  duties,  and  obligations.  79  Cal. 
663. 

3  Informal  marriage  has  been  recog- 
nized to  a  greater  or  less  extent  in  the 
United  States.  Dickerson  v.  Brown, 
49  Miss.  357;  Hutchins  v.  Kimmell,  31 
Mich.  126;  Port  v.  Port,  70  111.  484; 
Lewis  v.  Ames,  44  Tex.  319;  Dyer  v. 
Brannock,  66  Mo.  391  ;  Campbell  v. 
Gullatt,  43  Ala.  57 ;  Askew  v.  Dupree, 
30  Ga.  173;  Hynes  v.  McDermott,  91 
N.  Y.  451  ;  White  v.  White,  82  Cal. 
427.  But  Maryland  repudiates  the  doc- 
trine of  informal  marriages.  Denison 
v.  Denison,  35  Md.  361  ;  as  by  force  of 
statute  or  otherwise,  do  certain  other 
States.     See  1  Bishop,  §  279 ;  Estill  v. 


Rogers,  1  Bush,  62  ;  Holmes  v.  Holmes, 
1  Abb.  (U.  S.)  525;  Robertson  v.  State, 
42  Ala.  509  ;  State  v.  Miller,  23  Minn. 
352;  Commonwealth  v.  Muuson,  127 
Mass.  459;  State  v.  Hodgskins,  19  Me. 
155 ;  Schouler,  Hus.  &  Wife,  §§  31-34  ; 
Tholey's  Appeal,  93  Penn.  St.  36  ;  Stim- 
son,  §  6101  ;  17  R.  I.  720;  §  28,  post. 
And  see  Dysart  Peerage  Case,  6  App. 
Cas.  489  (1881 ).  "  By  the  common  law, 
if  the  contract  be  made  per  verba  de  pre- 
sents, it  is  sufficient  evidence  of  mar- 
riage ;  or  if  made  per  verba  de  futuro 
cum  copula,  the  copula  would  be  pre- 
sumed to  have  been  allowed  on  the 
faith  of  the  marriage  promise,  so  that 
at  the  time  of  the  copula  the  parties  ac- 
cepted each  other  as  husband  and  wife. 
On  this  subject  the  maxim  of  the  law 
is  inexorable,  that  it  is  the  consent  of 
parties,  and  not  their  concubinage,  that 
constitutes  valid  marriage.  The  well- 
being  of  society  demands  a  strict  adher- 
ence to  this  principle."  Hebhlethwaite 
v.  Hepworth,  98  111.  126,  132.  And 
see  20  Fed.  Rep.  281,  which  sustains 
the  common-law  validity  of  informal 
marriage. 

47 


§  26  THE    DOMESTIC    RELATIONS.  [PART   II. 

or  secular,  indispensable.  Most  of  the  continuous  decisions  relat- 
ing to  informal  marriages  (prior  to  1870  at  least)  are  therefore 
to  be  found  in  the  Scotch  reports,  where  the  general  doctrine 
has  been  pretty  fully  discussed.  And  the  great,  the  almost 
insuperable,  difficulty  which  presents  itself  at  the  outset  in  such 
cases  is  thus  clearly  indicated  by  Lord  Stowell  in  Lindo  v. 
Belisario:  "A  marriage  is  not  every  carnal  commerce;  nor 
would  it  be  so  even  in  the  law  of  nature.  A  mere  carnal 
commerce,  without  the  intention  of  cohabitation  and  bringing 
up  of  children,  would  not  constitute  marriage  under  any 
supposition.  But  when  two  persons  agree  to  have  that  com- 
merce for  the  procreation  and  bringing  up  of  children,  and  for 
such  lasting  cohabitation,  —  that,  in  a  state  of  nature,  would 
be  a  marriage ;  and,  in  the  absence  of  all  civil  and  religious 
institutions,  might  safely  be  presumed  to  be,  as  it  is  properly 
called,  a  marriage  in  the  sight  of  God."  1  Did  parties  therefore 
coming  thus  together  mean  fornication,  or  did  they  mean 
marriage  ? 

Here  it  is  seen  that  there  should  not  only  be  words  of  prom- 
ise, but  that  they  should  be  uttered  with  matrimonial  intent. 
Not  even  is  a  solemn  companionship  assumed  on  other  funda- 
mental conditions  than  those  which  public  policy  assigns  to 
the  institution  a  marriage  of  this  character.2  To  ascertain  the 
purpose  of  the  parties  in  each  case,  the  courts  will  look  at  all 
the  circumstances,  and  even  admit  parol  evidence  to  contradict 
the  terms  of  a  written  contract,  —  in  this  respect  modifying  the 
ordinary  rules  of  evidence.  For  writings  of  matrimonial  ac- 
knowledgment may  have  been  interchanged  as  a  blind  or  cover 
for  some  scheme  well  understood  between  the  parties.3  Or 
again  by  way  of  jest.4  But,  in  cases  of  doubt,  the  rule  is  to 
sustain  the  marriage  as  lawful  and  binding.     If  there  has  been 

1   1  Hag.  Con.  216;  4  En£.  Ec.  .167,  shall  exist."     Peck  v.  Peck,  155  Mass. 

374.     See  1  Bishop,  Mar.  &  Div.  5th  ed.  479. 

§§  210-207,  and    cases  cited;  2    Kent,  8  Dalrymple  v.  Dalrvmple,   2    Hag. 

Com.  86  and  //.  ;  1    Fraser,   Dom.  Pel.  Con.  54,  105;  4  Eng.  Ec.  485,  508,  509, 

l,  187,  212.  cited  in  1  Bishop,  Mar.  &   Div.   5th  ed. 

'l  As  where  a  man  and  woman  made  §3  2:59-241. 
in  presence  <>f  witnesses  a  "co-partner-  4  lb. ;  supra,  §23  ;  McClurg  v.  Terry, 

Bhip"  contract   in    writing   to   live  to-  21  N.  J.  Eq.  225;  Clark  v.  Field,  13  Vt. 

gether   "so   long   as    mutual   affection  460. 

48 


CHAP.  I.]  MARRIAGE.  §  26 

continued  intercourse  between  the  parties,  this  presumption 
becomes  of  course  still  stronger.  And  if  promises  were  ex- 
changed while  one  acted  in  good  faith  and  in  earnest,  the  other 
is  not  permitted  to  plead  a  mental  reservation.1 

Hence  we  may  observe,  generally,  that  a  betrothal  followed 
by  copulation  does  not  make  this  informal  marriage  a  legal  one, 
when  the  parties  looked  forward  to  a  formal  marriage  ceremony, 
and  did  not  agree  to  become  husband  and  wife  without  it.2  If, 
too,  a  woman,  in  surrendering  her  person  to  a  man,  is  conscious 
that  she  is  committing  an  act  of  fornication  instead  of  consum- 
mating such  a  marriage,  the  copula  cannot,  for  her  sake,  be  con- 
nected with  any  previous  words  of  promise  so  as  to  constitute 
a  marriage.3  And  a  uniou  once  originating  between  man  and 
woman,  purely  illicit  in  its  character,  and  voluntarily  so,  there 
must  appear  some  formal  and  explicit  agreement  between  the 
parties  thereto,  or  a  marriage  ceremony,  or  some  open  and  visi- 
ble change  in  their  habits  and  relations,  pointing  to  honest  in- 
tentions, before  their  alliance  can  be  regarded  as  converted  into 
either  a  formal  or  an  informal  marriage.4 

Nor  is  the  issue  between  informal  marriage  and  illicit  inter- 
course to  be  concluded  by  the  conduct  of  the  pair  towards 
society.  They  may,  for  convenience  or  decency's  sake,  hold 
themselves  out  to  third  persons  as  man  and  wife,  while  yet  sus- 
taining at  law,  and  intentionally,  a  purely  meretricious  relation.5 

And  yet  a  proper  regard  for  the  real  intention  of  the  co- 
habiting pair  encourages  often  the  presumption  of  innocence 
and  good  faith,  even  where  the  relation  assumed  was  an  il- 
legal one.     Supposing  two  persons  to  have  made  an  informal 

1  Tb.     And  see  1  Fraser,  Dom.  Rel.  of  marriage  under  such  circumstances. 

213  ;  Lockyer  v.  Sinclair,  8  Scotch  Sess.  1 13  Penn.  St.  204.     Perhaps  the  Scotch 

Cas.  n.  s.  582.  law  is  less  emphatic  on  this  point.     It 

2  Peck  v.  Peck,  12  R.I.  485;  Bever-  is  stated  in  Breadalbane's  Case,  L.  R. 

son's  Estate,  47  Cal.  621.  1    H.  L.  Sc.  182,  that  a  connection  be- 

3  Port  v.  Port,  70  111.  484.  pinning  as  adulterous  may,  on  ceasing 

4  See  Floyd  v.  Calvert,  53  Miss.  37  ;  to  be  so,  become  matrimonial  by  con- 
Duncan  v.  Duncan,  10  Ohio  St.  181  ;  sent,  and  evidenced  by  habit  and  re- 
Hunt's  Appeal,  86  Penn.  St.  294  ;  Wil-  pute,  without  a  public  act. 

liams  v.  Williams,  46  Wis.  464  ;  Barnum  5  Howe's    Estate,    Myrick    Probate, 

v.  Barnnm,  42  Md.  251.     Cohabitation     100. 
and  reputation  afford   no   presumption 

4  49 


26 


THE   DOMESTIC   RELATIONS. 


[PART   II. 


marriage,  in  the  mistaken  belief  that  the  former  spouse  of 
one  of  them  was  already  dead,  or  that  some  sentence  of 
divorce  left  them,  in  like  manner,  free  to  unite.  This  case 
should  be  distinguished  from  that  of  some  original  under- 
standing for  a  mere  carnal  commerce.  And  if  the  impedi- 
ment becomes  removed  in  the  course  of  their  cohabitation 
under  such  circumstances,  and  the  pair  live  continuously 
together  as  man  and  wife,  no  new  ceremony,  agreement,  or 
visible  change  in  their  relation  would  probably  be  deemed 
requisite  to  establish  matrimonial  consent  subsequent  to  the 
removal  of  the  impediment ;  for  here  the  original  intention 
continues,  but  in  the  case  of  carnal  commerce  necessarily 
changes,  in  order  that  an  honest  relation  may  be  presumed.1 

Disbelief  in  ceremonials,  or  conscientious  scruples,  may  be 
alleged  in  support  of  an  informal  marriage,  by  way  of  prefer- 
ence, where  such  latter  marriage  is  held  lawful,  and  the  parties 
mutually  contracted  with  the  view  of  a  lawful  union.2 


1  See  De  Thoren  v.  Attorney-Gen- 
eral, 1  H.  L.  App.  686,  where  the  im- 
pediment followed  divorce  ;  here  it  was 
held,  in  conformity  with  the  rule  above 
stated,  that  matrimonial  consent  after 
the  marriage  impediment  was  removed 
might  be  presumed. 

'*■  See  Bissell  v.  Bissell,  55  Barb. 
325.  Alder,  where  statutes  positively 
require  a  ceremonial  marriage.  See 
post,  §  28. 

A  late  interesting  Scotch  case  illus- 
trates the  painful  uncertainty  which 
hangs  about  these  informal  marriages. 
A  baronet  of  forty,  and  a  bachelor, 
whose  dissolute  habits  were  notorious, 
bad  somewhat  intimate  relations  with 
tin-  family  of  a  man  who  made  fish- 
Entertained  at  the  hitter's 
house  on  ,-i  birthday  occasion,  with  a 
champagne  supper,  after  which  allu- 
sion was  made  by  the  host  to  the  bad 
name  he  was  getting  with  having  the 
baronet  so  mncb  among  his  daughters, 
the  titled  guest  offered  to  shut  people's 
mouths  ;  lie  was  poor  and  could  not 
marry  now,  In-  said,  but  would  marry 
after  Scotch   fashion.      Then,   kneeling 

50 


before  one  of  the  daughters,  a  damsel 
of  sixteen,  he  took  a  ring  from  his 
pocket,  placed  it  upon  her  third  finger, 
and  said  to  her,  "  Maggie  you  are  my 
wife  before  Heaven,  so  help  me,  O 
God  ! "  and  the  two  kissed  each  other. 
The  daughter  said,  "  Oh,  Major !  "  and 
put  her  arms  around  his  neck.  'Hie 
baronet  and  the  daughter  were  then 
"  bedded  "  according  to  the  old  Scotch 
fashion.  They  lived  together  for  some 
weeks  after  this  celebration,  and  met 
at  various  times,  but  there  appears  to 
have  been  no  continuous  cohabitation. 
In  about  thirteen  months  Maggie  had 
a  boy,  whom  she  registered  as  illegiti- 
mate ;  and  some  eighteen  months  later 
still,  the  baronet  died.  The  parties  to 
this  hasty  and  apparently  unpremedi- 
tated union  had  not  meantime  repre- 
sented themselves  as  husband  and  wife ; 
and  as  for  the  baronet,  he  denied  to 
others  that  such  relation  existed,  until, 
when  lying  at  the  point  of  death  in 
delirium  tremens,  he  seemed  doubtfully 
to  admit  it.  Now,  here  was  an  infor- 
mal marriage,  with  words  of  suitable 
import,   solemn   and   precise,   followed 


CHAP.  I.]  MARRIAGE.  §  27 

§  27.  Same  Subject ;  Informal  Celebration.  —  Words  of  pres- 
ent promise,  in  order  to  constitute  an  informal  marriage,  must 
contemplate  a  present,  not  a  future,  assumption  of  the  status. 
And  herein  lies  a  difficulty  :  that  of  discriminating  between 
actual  marriage  and  what  we  now  commonly  term  an  engage- 
ment. If  the  agreement  be  by  words  of  present  promise,  —  as 
if  the  parties  should  say,  "  We  agree  to  be  henceforth  man  and 
wife,"  —  the  marriage  is  perfect.  The  form  of  expression  is  not 
material.1  And  Swinburne  says  that  though  the  words  should 
not  of  themselves  conclude  matrimony,  yet  the  marriage  would 
be  good  if  it  appeared  that  such  was  the  intent.2  The  proposal 
of  one  must  be  actually  accepted  by  the  other  ;  yet  such  accept- 
ance may  be  indicated  by  acts,  such  as  a  nod  or  courtesy.  The 
mutual  consent  may  be  expressed  orally  or  in  writing.3  Written 
promises  are  of  course  unnecessary ;  though  the  reported  cases 
show  frequently  letters  or  other  writings  interchanged,  from 
which  the  intent  was  gathered.  And  in  the  celebrated  Scotch 
case  of  Dairy  mple  v.  Dairy  mple,  a  marriage  promise  was  es- 
tablished from  the  successive  united  acknowledgments  of  the 
parties  as  man  and  wife,  the  writings  having  been  preserved 
by  the  lady  and  produced  by  her  at  the  trial.  In  this  case 
the  principle  was  sustained,  that  words  importing  secrecy  or 
alluding  to  some  future  act  or  public  acknowledgment,  when 
superadded   to   words   of   present   promise,    do   not   invalidate 

by     consummation.       Supposing     this  his   death.     Both   parents   of  the   girl 

ceremony  to  have  been  with  marriage  were   now  dead ;  the    baronet   had  be- 

intention,  there  was  no  reason  for  dis-  gotten  illegitimate  offspring  during  his 

puting  its  validity  ;  nor,  indeed  on  the  life  elsewhere ;  and  instead  of  asserting 

girl's  behalf,  provided  she  took  all   in  upon  his  death,  as  she  might,  that  this 

seriousness,   even   though   the   baronet  boy  was  his  lawful  child,  Maggie  had 

himself  jested.     To  be  sure,  he  might  at  first  claimed  only  a  bastard's  support 

have   been   maudlin    at   the    moment ;  for  him.     Steuart  v.  Robertson,  L.  R.  2 

on  which  point,  however,  the  case  did  H.  L.  Sc.  494. 

not  turn.     The  British  House  of  Lords  *  1  Bishop,  Mar.  &  Div.  5th  ed.  §§  227, 

reversed    the    decision    of  the   Scotch  229;  1  Fraser,  Dom.  Rel.  145-149. 
Court  of  Sessions,  mainly  upon  circum-  '2  Swinb.  Spousals,  2d  ed.  87. 

stantial  proof  that  both  parties  by  be-  3  See  Sapp  v.  Newsom,  27  Tex.  537, 

havior    subsequent     to    the    ceremony  where  marriage  by  means  of  mutually 

repudiated  its  force,  and  that  neither,  executing   a   bond   or  contract   is  sus- 

iu  fact,  had  been  in  earnest.     The  pres-  tained  under  the  old  law,  which  was  of 

ent   issue   involved  the   inheritance  of  Spanish  origin.     But  cf.  State  v.  Miller 

the  baronet's  estate  at  some  lapse  from  23  Minn.  352. 

51 


§  27  THE   DOMESTIC   EELATIONS.  [PART    H. 

the  agreement.1  More  uncertainty  arises  in  matrimonial  con- 
tracts where  a  condition  inconsistent  with  marriage  is  super- 
added ;  as  if  parties  should  agree  to  live  together  as  man  and 
wife  for  ten  years;  but  bona  fide  intent  may  be  fairly  presumed 
where  there  are  no  special  circumstances  to  throw  light  upon 
the  conduct  of  the  parties.2 

Marriage  by  words  of  future  promise  is  consummated  when 
two  persons  agree  to  marry  at  some  future  period  and  after- 
wards actually  do  cohabit.  The  foundation  of  this  doctrine 
is  the  presumption  that  the  parties  meant  right  rather  than 
wrong,  and  hence  that  copulation  was  permitted  on  the  faith 
of  the  marriage  promise.  But  in  this  class  of  cases  it  is 
requisite  that  the  promise  de  futuro  should  be  absolute  and 
mutual  and  in  good  faith.  Mere  courtship  does  not  suffice, 
though  followed  by  carnal  intercourse.3  Nor  in  general  do 
words  of  promise  with  immoral  conditions  annexed.  It  is  ad- 
mitted that  no  familiarities  short  of  the  copula  will  convert 
such  loose  espousals  into  matrimony.4  It  is  not  clear  whether 
cohabitation  after  verba  de  futuro  ever  raises  a  conclusive  pre- 
sumption of  marriage  at  law  or  not ;  unquestionably  the  more 
reasonable  doctrine,  however,  is  that  it  does  not,  and  that  the 
intent  of  the  parties  may  be  shown  as  in  other  cases.5  But 
innocence  will  be  inferred,  if  possible,  rather  than  guilt.6     So  it 

1  Dalrymple  v.  Dalrymple,  2  Hag.  v.  Millis,  10  CI.  &  F.  534,  780;  Peck  v. 

Con.  54 ;  4  Eng.  Ec.  485 ;  Mclnnes  v.  Peck,  12  R.  I.  485  ;  Beverson's  Estate, 

More,   Ferg.    Consist.    Law    Rep.   33 ;  47    Cal.  621  ;   Dumaresly   v.  Fishly,  3 

Hoggan  v.  Craigie,  McLean  &  Rob.  942.  A.  K.   Marsh,  368  ;  1   Bishop,  Mar.  & 

See  1   Bishop,  Mar.  and  Div.  5th  ed.  Dir.  5th  ed.  §§  253-265,  and  other  cases 

§§  245-250;  Currie  v.  Turubull,  Hume,  cited;  Port  >•.  Port,  70  Dl.  484  ;  Schouler, 

373;   1    Fraser,   Dom.    Rel.    154.      See  Hus.  &  Wife,  §  38. 

Hamilton  v.  Hamilton,  9  CI.  &  F.  327  ;  «  i  Bishop,  §  253. 

Hautz  v.  Sealy,  6  Binn.  405;   Robert-  &  See  Schouler,  Hus.  &  Wife,  §§  40- 

.-.,ii  v.  <  iowdry.  2  West.  Law  Jour.  191  ;  51,  as  to  breach  of  promise.     Seduction 

Peck  v.  Peck,  155  Mass.  479.     Bissell  v.  under  breach  of  promise  does  not  con- 

Bi   sell,  55  Barb.  325,  shows  an  interest-  stitute  a  marriage.     See,  too,  Morrison 

i ii lt  state  of  facts,  upon  which  it  was  de-  v.  Dobson,  8  Scotch  Sess.  347. 

cided  thai  the  marriage  was  valid.  ,;  See  Cheney  v.  Arnold,  15  N.  Y. 

'■'■  Reid   v.  Laing,  l  Shaw,  App.  Cas.  345;   Duncan  v.  Duncan,  10  Ohio  St. 

4  10;    Morrison    v.    Dobson,   8    Scotch  181;    and    comments  of    Mr.    Bishop, 

347, cited  1  Bishop, §253;  Bread-  §§  255-258;  Keg.  v.  Millis,  10  CI.  &  P. 

albane'    Case,  L    I:    i    ILL.  Sc.  182;  534;   Swinb.  Spousals,  2d  ed.  225,  226 ; 

irt   v  Menzies,  2  Rob.  App.  Cas.  Robertson  v.  State,  42  Ala.  509. 
547,  591  ,  i  Fraser,  Dora.  Rel.  L88;  Reg. 
52 


CHAP.  I.J  MARRIAGE.  §  28 

has  been  said  that  where  a  legal  impediment  exists  to  a  mar- 
riage between  persons  living  in  licentious  intercourse,  as  the  im- 
pediment sinks  the  status  rises.1  It  is  the  promise  to  marry 
hereafter  on  which  breach  of  promise  suits  are  founded,  often 
with  accompanying  proof  that  sexual  intercourse  was  permitted 
on  the  faith  of  the  promise ;  here  there  was  no  marriage,  but  an 
engagement  to  marry.2  In  New  York  this  doctrine  of  marriage 
by  words  defuturo  is  utterly  repudiated  ;  and  in  other  States  it 
is  maintained  quite  broadly  that  all  informal  marriages  were 
unknown  to  the  English  common  law.3  This  last  has  been 
long  a  mooted  point  in  the  courts,  and  will  ever  remain  so ;  but 
whatever  may  have  been  the  historical  fact,  certain  it  is  that 
the  necessity  of  a  more  formal  observance  of  marriage  has  been 
almost  universally  recognized ;  and  the  very  words,  "  marriage 
in  the  sight  of  God,"  so  familiar  to  the  readers  of  the  Scotch 
matrimonial  law,  not  only  import  the  peculiar  embarrassments 
which  attend  the  justification  of  such  loosely  contracted  alli- 
ances before  the  world,  but  attest  the  solemn  character  of  this 
institution.4 

§  28.  Same  Subject;  Formal  Celebration.  —  (2)  All  the 
learning  of  informal  marriages,  if  there  was  ever  much  of  it, 
was  swept  out  of  the  English  courts  when  formal  religious  cele- 
bration was  prescribed  by  positive  statute.  Ceremonials  had 
long  been  required  by  those  canons  upon  which  the  ecclesias- 
tical law  was  based.  Lord  Hardwicke's  Act,  passed  in  the 
reign  of  George   II.,5  is    the   most   famous  of  these    statutes. 

1  1  Bishop,  Mar.  &  Div.  5th  ed.  ful  research.  Continuous  cohabitation 
§  248  ;  De  Thoren  v.  Attorney-General,  within  Scotland  establishes  marriage 
1  H.  L.  App.  686.  in  Scotch  law,  but  cohabitation  outside 

2  Schouler,  Hus.  &  Wife,  §§  40-51.  Scotland  will   not  constitute  marriage. 

3  Cheney  v.  Arnold,  15  N.  Y.  345.  Dysart  Peerage  Case,  6  App.  Cas.  489. 
But  see  Bishop,  §§  255-258;  Bissell  v.  4  For  a  case  arising  on  an  indict- 
Bissell,  55  Barb.  325.  And  see  Deni-  ment  against  a  man  for  cohabiting  with 
son  v.  Denison,  35  Md.  361  ;  Holmes  v.  a  woman  without  formal  marriage,  but 
Holmes,  1  Abb.  (U.  S.)  525  ;  Duncan  under  a  special  contract  for  a  life-union 
v.  Duncan,  10  Ohio  St.  181  ;  Port  v.  and  joint  accumulation  of  property  and 
Port,  70  111.  484.  The  opinion  of  Lord  care  of  children,  see  State  v.  Miller,  23 
Stowell,  in  the  case  of  Dalrymple  v.  Minn.  352.  And  see  Commonwealth  v. 
Dairy mple,  to  which  we  have  alluded,  Mnnson,  127  Mass.  459.  See,  further 
is  an  admirable  exposition  of  the  law  Schouler,  Hus.  &  Wife,  §§  38,  39. 

of  informal  marriages.     It  is  a  master-  5  26  Geo.  II.  c.  33  (1753). 

piece   of  judicial   eloquence   and   care- 

53 


§    28  THE   DOMESTIC   RELATIONS.  [PART   II. 

This  act  required  all  marriages  to  be  solemnized  in  due  form 
in  a  parish  church  or  public  chapel,  with  previous  publication 
of  the  banns ;  and  marriages  not  so  solemnized  were  pro- 
nounced void,  unless  dispensation  should  be  granted  by  special 
license.  Some  harsh  provisions  of  this  act  were  relaxed  in  the 
reign  of  George  IV.,  but  soon  re-enacted.1  More  recent  legis- 
lation permits  of  a  civil  ceremonial  before  a  register,  to  satisfy 
such  as  may  have  conscientious  scruples  against  marriage  in 
church.2  Such,  too,  is  the  general  tenor  of  legislation  in  this 
country ;  the  law  justly  regarding  civil  observances  and  public 
registration  sufficient  for  its  own  purposes,  while  human  nature 
clings  to  the  religious  ceremonial.3 

Either  celebration  before  a  clergyman  or  with  the  partici- 
pation of  some  one  of  such  civil  officers  as  the  statute  may 
designate  is  therefore  at  the  option  of  parties  choosing  at  the 
present  day  to  marry.  This  is  the  law  of  England  and  America. 
And  the  only  controversies  ever  likely  to  occur  in  our  courts 
would  be  where  the  language  of  the  statutes  in  some  particular 
State  left  it  doubtful  whether  marriages  celebrated  informally 
were  to  be  considered  absolutely  null.  It  is  to  be  borne  in  mind 
that  Lord  Hardwicke's  Act  is  of  too  recent  a  date  to  be  considered 
as  part  of  our  common  law.  Was,  then,  marriage  in  facie  ecclesice 
essential  in  England  before  the  passage  of  this  act  ?  It  is  ad- 
mitted that  the  religious  marriage  celebration  was  customary 
previous  to  the  Reformation.  It  is  further  allowed  that  the 
cl  inrch,  centuries  ago,  created  an  impediment,  now  obsolete, 
called  "  precontract,"  the  effect  of  which  was  that  parties  en- 
gaged to  be  married  were  bound  by  an  indissoluble  tie,  so  that 
either  one  could  compel  the  other  to  submit  at  any  time  to  the 
ceremonial  marriage.  But  whether  precontract  rendered  chil- 
dren legitimate,  and  carried  dower,  curtesy,  and  the  other  in- 
cidents of  a  valid  marriage,  is  not  clear.  In  1844  the  question, 
whether  at  the  common  law  a  marriage  without  religious  cere- 
mony was  valid,  went  to  the  English  House  of  Lords,  and  re- 

I  8  Geo.  IV.;  4  Geo.  IV.  c.  76.  8  See  2  Kent,  Com.  88-90;  1  Bishop, 

6  &  7  Will   IV.  c.  85  &  o.  88;  Mar.  &  Div.  5th  ed.  §279;    Stimsoii's 

7  Will.  IV.,  and   1  Vict.  c.  22,  and  3  &  Am.  Stat.  Law,  §  6120. 
4  Vict.  c.  92. 

54 


CHAP.  I.]  MARRIAGE.  §  28 

suited  in  an  equal  division.1  And,  curiously  enough,  such  was 
the  fate  of  a  similar  case  in  this  country  before  the  highest 
tribunal  in  the  land.2  So  that  we  may  fairly  consider  the  law 
011  this  point  as  doubly  unsettled.3 

Among  most  nations  and  in  all  ages  has  the  celebration  of 
marriage  been  attended  with  peculiar  forms  and  ceremonies, 
which  have  partaken  more  or  less  of  the  religious  character. 
Even  the  most  barbarous  tribes  so  treat  it  where  they  hold  to 
the  institution  at  all.  The  Greeks  offered  up  a  solemn  sacri- 
fice, and  the  bride  was  led  in  great  pomp  to  her  new  home.  In 
Rome,  similar  customs  prevailed  down  to  the  time  of  Tiberius. 
Marriage,  it  is  true,  degenerated  afterwards  into  a  mere  civil 
contract  of  the  loosest  description,  parties  being  permitted  to 
cohabit  and  separate  with  almost  equal  freedom.4  The  early 
Christians,  there  is  reason  to  suppose,  treated  marriage  as  a 
civil  contract,  yielding,  perhaps,  to  the  prevailing  Roman  law. 
Yet  the  teachings  of  the  New  Testament  and  church  discipline 
gave  peculiar  solemnity  to  the  relation.  And  religious  observ- 
ances must  have  prevailed  at  an  early  date,  for  in  process  of 
time  marriage  became  a  sacrament.  In  England,  centuries 
later,  it  needed  only  Lord  Hardwiche's  Act  to  apply  statute 
law  to  a  universal  practice ;  for  although,  in  the  time  of  Crom- 
well, justices  of  the  peace  were  permitted  to  perform  the  cere- 
mony, popular  usage  by  no  means  sanctioned  the  change. 
Informal  marriages  are  uncommon  even  in  Scotland,  where  the 

1  Reg.  ?-.  Millis,  10  CI.  &  F.  534.  that  in   these   colonies  the  attendance 

2  Jewell  v.  Jewell,  1  How.  (U.  S.)  of  one  in  holy  orders,  and  more  espe- 
219.  cially  of  an  ordained  clergyman  of  the 

3  See  full  discussion  of  this  question,  established  church,  could  not  always  be 
with  authorities,  in  note  to  2  Kent,  Com.  readily  procured.  See  1  Bishop,  Mar. 
87 ;  also  in  1  Bishop,  Mar.  &  Div.  §§  269-  &  Div.  5th  ed.  §§  279-282,  and  decisions 
282;  Cheney  ?\  Arnold,  15  N.  Y.  345.  collated  ;  2  Kent,  Com.  87  ;  Reeve,  Dom. 
The  American  doctrine  is,  that  the  in-  Rel.  195  et  seq.;  2  Greenl.  Ev.  §  460. 
tervention  of  one  in  holy  orders  was  not  But  in  several  States  the  contrary 
essential  at  common  law.  This  is  the  is  declared  to  be  the  common  law. 
view  of  Chancellor  Kent,  Judge  Reeve,  1  Bishop,  ib.  And  statutory  forms  are 
and  Professor  Greenleaf,  as  expressed  declared  requisite,  and  the  doctrines  of 
in  their  respective  text-books,  also  the  informal  marriage  denied  more  or  less 
general  current  of  American  decisions,  emphatically,  as  the  foregoing  pages 
Mr.  Bishop  confirms  these  conclusions  have  shown.     Supra,  §  26,  note. 

while  suggesting  new  reasons  for  such  4  Smith's  Diet.  Antiq.  "Marriage;* 

an  American  doctrine  ;  as  for  instance,    supra,  Part  I. 

55 


§  29  THE   DOMESTIC   RELATIONS.  [PART   II. 

civil  law  prevails.  In  our  own  country  it  is  not  surprising 
that  local  jurisprudence  should  have  exhibited  some  signs  of 
reaction  against  ancient  canon  and  kingly  ordinance.  Yet, 
even  with  us;  the  almost  universal  custom  repudiates  informal 
and  civil  observances ;  and,  secured  in  the  privilege  of  choos- 
ing prosaic  and  business-like  methods  of  procedure,  Christian 
America  yields  its  testimony  in  favor  of  marriage  in  facie 
ecclesice.1 

§  29.  Same  Subject  ;  Formal  Celebration.  —  But,  out  of  con- 
sideration for  what  may  be  termed  the  public,  or  natural  and 
theoretical  law  of  marriage,  many  American  courts  have,  to 
a  very  liberal  extent  and  beyond  all  stress  of  necessity,  upheld 
the  informal  marriage  against  even  legislative  provisions  for 
a  formal  celebration.  Marriage  being  a  matter  of  common 
right,  it  is  lately  held  by  the  highest  tribunal  for  harmonizing 
the  rule  of  States,  that,  unless  the  local  statute  which  pre- 
scribes regulations  for  the  formal  marriage  ceremony  positively 
directs  that  marriages  not  complying  with  its  provisions  shall 
be  deemed  void,  the  informal  marriage  by  words  of  present 
promise  must  be  pronounced  valid,  notwithstanding  statutory 
directions  have  been  disregarded.2 

Whether  we  must  absolutely  accept  this  doctrine  or  not, 
in  its  full  pernicious  extent,  and  thus  put  legislators  to  the 
use  of  express  words  of  nullity  in  statutes  which  might  other- 
wise as  well  have  been  omitted,  the  main  purpose  of  enforc- 
ing upon   civilized  and  populous    communities  marriage   rites 

1  See  2  Kent,  Com.  89,  and  author!-  solemnized   in   church."     Reeve,  Dom. 

ties  cited.  Rel.  196.     At  the  time  he  wrote,  was 

We  do  not  mean  to  imply  that  mar-  not    the    practice    prevailing   in    New 

rin  if-  is  a  sacrament,  or  that  religious  England  contrary  to  his  theory,  as  it 

ceremonies  are  essential  to  its  duo  ob-  was  hefore  and   as  it    remains   still? 

servance.      We   are   speaking   only    of  And  who  lias  over  proposed  in  modern 

the  universal  testimony  as  id  the  fitness  times  to  perform  a  business  contract  in 

of  peculiar  and  in  general  religious  oh-  church  ? 

servances.      Judge    Reeve,    exhibiting         2  Meister  v.    Moore,  96  U.    S.   76, 

his  contempt   for   "Popish"  practices,  citing  this  as  the  rule   in   Michigan; 

say8,"There   is  nothing  in  the  nature  Hntchins  v.  Kimmell,  31  Mich.  r.'S  ;  88 

of  a   man  racl    that    is   more  Mich.   279;    Londonderry    v.    Chester, 

sacred   than    thai    oi    other  contracts,  l'    X.   II.   268;    Hebblethwaite  v.  Hep 

that  requires  the  interposition  of  a  per-  worth,  '.is  ill.  12G. 
■on  in  hoi .  ord<  rs,  or  that  it  should  be 

56 


CHAP   I.]  MARRIAGE.  §  29 

appropriate  to  so  solemn  an  institution  being  surely  desirable, 
it  will  be  readily  conceded  that  English  and  American  tribu- 
nals tend,  in  construing  the  marriage  acts,  to  uphold  every 
marriage,  if  possible,  notwithstanding  a  non-compliance  with 
the  literal  forms.  And  this  is  right ;  fur  while  formal  celebra- 
tion is  a  shield  to  honest  spouses  and  their  posterity,  rigor  in 
the  details  of  form,  especially  in  inconvenient  or  trivial  details, 
or  those  which  it  is  incumbent  rather  upon  third  persons  to 
respect,  exposes  them  to  new  dangers.  Thus  is  it  as  concerns 
place ; 1  and  as  to  the  due  proclamation  of  banns,  collateral 
points  concerning  ecclesiastical  authority  are  inappropriate.2 
Presumptions  cannot  be  indulged  against  the  continuance  of  a 
bona  fide  marriage  relation.3  A  consistent  reputation  of  being 
married  carries  its  full  weight  as  to  cohabiting  parties,  who 
appear  to  have  lived  together  as  husband  and  wife.4  And 
though  the  parties  may  have  failed  to  observe  certain  formali- 
ties of  license  or  registry,  their  marriage  will  generally  be  held 
good  in  both  England  and  this  country,  even  though  the  magis- 
trate or  clergyman  be  subject  himself  to  a  penalty  for  the 
irregularity.5  On  the  other  hand,  our  ceremonial  statutes  of 
marriage,  which  require  fulfilment  at  all,  must,  in  fundamental 

1  Queen  v.  Cresswell,  1  Q.  B.  D.  446.  marriage  records  are  treated  with  es- 
And  see  Stalhvood  v.  Tredger,  2  Phil-  pedal  favor  as  proof.  60  N.  H.  418; 
lim.  2S7.  78  Me.  20.     The  testimony  of  the  per- 

2  See  Hutton  v.  Harper,  1  H.  L.  son  who  performed  the  ceremony  or  of 
A  pp.  464;  Sichel  U.Lambert,  15  C.  B.  some  witness  present  is  otherwise  de- 
n.  s.  781  ;  Prowse  v.  Spurway,  26  W.  R.  sirable.  The  presumptions  are  in  favor 
116;  Cannon  v.  Alsbury,  1  A.  K.  Marsh,  of  bona  fide  marriage,  while  reputation 
76;  Askew  v.  Dupree,  30  Ga.  173;  alone  will  not  establish  that  no  marriage 
Blackburn  v.  Crawfords,  3  Wall.  175;  existed. 

Holmes  v.  Holmes,  6  La.  463;  Steven-  6  Upon  this  point,  see,  further,  Schou- 

son  v.  Gray,  17  B.  Monr.  193.  ler,  Hus.  &  Wife,  §  35,  and  cases  cited  ; 

3  Wiseman  v.  Wiseman,  89  Ind.  479.  1  Bishop,  Mar.  &  Div.  §§  283, 287.   There 

4  Lauderdale  Peerage,  10  App.  Cas.  are  various  local  statutes  to  the  effect 
692;  Hynes  v.  McDermott,  91  N.  Y.  that  where  parties  consummate  a  mar- 
451.  See  28  Hun,  235;  Northrop  v.  riage  in  good  faith  before  a  justice  of 
Knowles,  52  Conn.  522.  The  presump-  the  peace  or  minister,  &c,  the  marriage 
tion  of  marriage  arising  from  matri-  shall  not  be  deemed  void  on  account  of 
monial  cohabitation,  declaration  of  the  the  want  of  authority  of  such  person, 
parties,  and  reputation,  is  not  rebutted  Stimson,  Am.  Stat.  Law,  §  6137.  And 
by  proof  of  a  subsequent  actual  mar-  a  marriage  among  the  Friends  or  the 
riage.  Betsinger  v.  Chapman,  88  N.  Y.  Jews  is  also  allowed  to  be  solemnized 
487.  after  their  peculiar  customs.    lb.,  §6135. 


Marriage  certificates  and  copies  of 


57 


§  30  THE   DOMESTIC   RELATIONS.  [PART   II. 

respects  at  all  events,  be  complied  with.  Thus,  the  essence  of 
formal  marriage  seems  to  consist  in  the  performance  of  the 
ceremony  by  or  in  the  presence  of  some  responsible  third  person. 
And  hence,  unless  parties  can  take  refuge  in  natural  law  and 
an  informal  marriage,  they  are  not  permitted  to  tie  their  own 
knot.1 

§  30.  Consent  of  Parents  and  Guardians.  —  The  consent  of 
parents  and  guardians  is  one  of  those  formalities  which  mar- 
riage celebration  acts  now  commonly  prescribe  in  the  interest 
of  society,  as  they  do  banns  or  the  procurement  of  a  license 
generally  for  better  publicity.  Such  consent  was  not  neces- 
sary to  perfect  a  marriage  at  the  common  law.  But  Lord 
Hardwicke's  Act  made  the  marriage  of  minors  void  without 
consent  of  parents  or  guardians  first  obtained.2  This  proved 
intolerable.  A  bona  fide  and  apparently  regular  marriage  was 
in  one  instance  set  aside,  after  important  rights  had  inter- 
vened for  no  other  cause  than  that  an  absent  father,  supposed 
to  be  dead,  but  turning  up  unexpectedly,  had  failed  to  bestow 
his  permission,  and  the  mother  had  acted  in  his  stead.3  Gretna 
Green  marriages,  on  Scotch  soil,  became  the  usual  recourse  for 
children  with  unwilling  protectors.4  Hence  the  law  was  after- 
wards modified,  so  that,  without  the  requisite  consent,  mar- 
riages, although  forbidden,  might  remain  valid ; 6  and  these 
features  are  found  to  characterize  most  marriage  acts  in  the 
different   States   of  this   country.6     Clandestine   marriages  are 

1  Commonwealth  v.  Munson,  127  3  Hayes  v.  Watts,  2  Phillim.  43. 
Mass.  459.  And  see  Milford  v.  Wor-  *  Stat.  19  &  20  Vict.  c.  96,  to  stop 
cester,  7  Mass.  48 ;  Tholey's  Appeal,  these  runaway  matches,  enacts  that  no 
93  Perm.  St.  36;  Norcross  v.  Norcross,  irregular  marriage  contracted  in  Scot- 
155  Mass.  425.  But  in  Beamish  v.  land  shall  be  valid  unless  one  of  the 
Beamish,  1  Jur.  n.  s.  Part  II.  455,  it  was  parties  had  his  or  her  usual  residence 
hell  in  Ireland  that  a  clergyman  might  in  Scotland,  or  lived  there  for  21  days 
marry  himself.  See  1  Bishop,  §  289.  preceding  the  marriage.  Lawford  v. 
A  verbal  reservation  just  previous  to  a  Davies,  39  L.T.  n.  s.  hi. 

marriage  ceremony  by  one  of  the  par-  B  Bex  v.  Birmingham,  8  B.  &  C.  29; 

ties  is  doI    readily  supposed  to  invali-  Shelf.   Mar.   &  Div.  309-322;  Stat.  4 

d;it<-  i  hit  marriage.     Brooke  v.  Brooke,  Geo.  IV.  c.  76. 

60  Md.  524.  °  1  Bishop,  Mar.  &  Div.  §§341-347, 

2  26  Geo.  II.  c.  33.  See  2  Kent,  and  cases  cited;  Smyth  v.  State,  13 
Com.  85;  Rex  v.  Hodnett,  1  T.  R.  96!  Ark.  696;  Wyckoff  v.  Boggs,  2  Ilalst. 
I  BiBhop,  Mar.  &  Div.  5th  ed.  §§293-  138  J  Bollin  v.  Shiner,  2  Jones  (Pa.), 
295,  and  cases  cited.  205.     And  see    Wood    v.   Adams,    35 

58 


CHAP.  I.]  MARRIAGE.  §  31 

doubtless  to  be  discouraged,  and  the  law  will  willingly  inflict 
penalties  upon  clergymen,  magistrates,  and  all  others  who  aid 
the  parties  in  their  unwise  conduct,  the  penalty  serving  in  a 
measure  as  indemnification  to  the  parent  or  guardian ;  but 
experience  shows  that  legislation  cannot  safely  interpose  much 
further.1 

Under  such  statutes  (which,  however,  vary  in  language 
and  scope  in  different  States),  it  has  been  held  that  if  a  minor 
has  both  parent  and  guardian,  the  guardian  should  consent  in 
preference ;  though  it  might  appear  more  proper  to  consider 
which  has  the  actual  care  and  government  of  the  minor.  One 
who  has  relinquished  the  parental  control  cannot  sue  for  the 
penalty ;  but  a  father's  unfitness  is  not  pertinent  to  the  issue 
of  uniting  his  minor  child  in  marriage  without  his  leave,  nor 
ground  for  accepting  the  mother's  sole  consent  instead.  In  this 
class  of  statutes  the  minister  or  magistrate  who  has  made  him- 
self amenable  to  the  law  cannot  in  general  defend  on  the  plea 
that  he  acted  in  good  faith.  The  expression  of  consent  is  in 
some  States  made  a  prerequisite  to  granting  the  marriage 
license.2 

§  31.  Legalizing  Defective  Marriages  ;  Legislative  Marriage. — 
Defective  marriages,  we  may  further  observe,  have  in  some  in- 
stances been  legalized  by  statute ;  as  where  parties  within  the 
prohibited  degrees  of  consanguinity  or  affinity  have  united.  So 
with  marriages  before  a  person  professing  to  be  a  clergyman  or 
justice  of  the  peace,  but  without  actual  authority.  On  princi- 
ple, in  fact,  there  seems  no  reason  to  doubt  that  any  govern- 
ment, through  its  legislative  branch,  may  unite  a  willing  pair 
in  matrimony,  as  well  as  pass  general  laws  for  that  purpose ; 3 

N.  H.  32  ;  Kent  v.  State,  8  Blackf.  16.3  ;  the  latter  is,  of  course,  to  be  presumed 

Askew  v.   Dupree,   30  Ga.   1 73  ;   Fitz-  rather  than  the  former. 

patrick  v.  Fitzpatrick,  6  Nev.  63 ;  Ad-  1  See  further,  Schouler,  Hus.  &  Wife, 

ams  v.  Cutright,  53  111.  361  ;  State  v.  §  36. 

Dole,  20  La.  Ann.  378.    The  language  2  Schouler,  Hus.  &  Wife,  §  36.    The 

of  some  statutes   leaves  the  point  in  effort  of  the  legislature  is  to  exercise  a 

doubt   as  to  whether  marriage  without  salutary    supervision    by    requiring    a 

the  consent  of  parents  renders  the  mar-  license  to  be  taken  out. 

riage  void,  or  only  subjects  offending  8  Brunswick  v.  Litchfield,  2  Greenl. 

parties,  including  the  person  who  per-  28 ;   Moore  v.   Whittaker,   2    Harring. 

forms  the  ceremony,  to  a  penalty.     But  50  ;  Goshen  v.  Richmond,  4  Allen,  458 ; 

59 


§  32  THE   DOMESTIC    RELATIONS.  [PART   II. 

unless  as  is  sometimes  found,  the  State  constitution  prohibits 
such  enactments.  But  though  legislative  divorces  are  not 
unfrequent,  a  legislative  marriage  is  something  unknown,  not 
to  say  uncalled  for.  And  in  this  country,  peculiar  questions 
of  fundamental  constraint  under  a  written  constitution  might 
arise,  even  where  the  cure  only  of  a  defective  marriage  was 
sought  by  the  legislature ;  inasmuch  as  the  intervening  rights 
of  third  persons  might  thereby  be  prejudiced.1 

§  32.  Restraints  upon  Marriage.  —  The  policy  of  restraining 
marriage  is  treated  with  disfavor  by  our  law,  which  on  the 
contrary  seems  disposed  to  encourage  the  institution,  though 
not  to  the  extent  practised  by  some  countries  of  openly  pro- 
moting its  observance,  or  forcing  private  inclination  in  the 
conjugal  direction.  Numerous  cases,  those  particularly  which 
construe  the  provisions  of  testamentary  trusts,  have  laid  it 
down  that  the  general  restraint  of  marriage  is  to  be  dis- 
couraged. Accordingly  a  condition  subsequent,  annexed  by 
way  of  forfeiture  to  a  gift,  legacy,  or  bequest,  in  case  the  donee 
or  legatee  should  marry,  will  be  held  void  and  inoperative,  as 
a  restraint  upon  marriage,  and  so  as  to  both  income  and  capi- 
tal.2 But  marriage  and  remarriage  are  differently  viewed  in 
this  respect ;  and  it  is  well  settled  that  forfeiture  by  condition 
subsequent  in  case  a  widow  shall  marry  again  must  be  upheld 
as  valid,  whether  that  widow  be  the  beneficiary  through  her 
husband  or  some  other  person.  Does  the  latter  rule  apply 
equally  to  widow  and  widower,  woman  and  man  ?  Upon  full 
consideration  the  English  chancery  held  a  few  years  ago,  on 
appeal  (reversing  the  decision  of  the  lower  tribunal),  that  it 
does.3 

1    Bishop,  Mar.  &   Div.  5th  ed.  §§  657-  See  .also  promises  to  marry,  Schou- 

\      to   the  •  Efect  of  a  Texas  stat-  ler,  IIus.  &  Wife,  §§  40-51. 

ate,  which   relaxed  old  requirements  in  2  See  Bellairs  v.  Bellairs,  L.  R.  18 

og  an    irregular  marriage,  see  Eq.  510,  and  cases  cited. 

I{  ■••         Rice,   31    Tex.  174.     See  47  &  :i  Allen   v.   Jackson,   1  Ch.   I).   300, 

48  Vict   c.  20,  which  Legalizes  the  mar-  reversing  s.  c.  L.  11.  10  Eq.  631.     See 

«■«- i-t :i in  mi-mlicrs  of  the  Greek  opinion   of  James,  L.  J.,  and  authorities 

church.  cited,  —  this  interesting  point  being  thus 

A-  to  the  proof  of  a  marriage  and  raised  for  the  first  time. 

i   pres ptions,  see  1   Bishop,  Mar.  Rights  are   equal   as  to    marrying 

<i  Div.  5th  ed.  §  432  ei  seq.  ;  Schouler,  again,  bo  far  as  widow  and   widower 

Hub.  &  Wife,  §§  38,  89  ;  sitjira,  §  29.  are  concerned,  as  all  will  readily  admit 

60 


CHAP.  I.] 


MARRIAGE. 


§32  a 


The  latest  English  decisions,  on  the  whole,  do  not  strenu- 
ously resist  these  restraints  upon  marriage  in  testamentary- 
trusts.1  And  it  is  doubtful  whether  the  rule  discouraging 
restraint  of  marriage  can  extend  to  devises  of  land ;  though  on 
principle  there  should  be  no  distinction  between  devises  and 
gifts  or  bequests  in  this  respect.2 

§  o'2  a.  Marriage  in  another  State  or  Country.  —  Both  in 
England  and  the  United  States,  the  general  rule  of  law  is,  that 
marriage  contracted  elsewhere,  if  valid  where  it  is  contracted, 
is  locally  valid.  And  so  strongly  is  the  marriage  institution 
upheld  the  civilized  world  over,  that  even  though  the  marrying 
parties  thereby  evade  the  local  law,  this  rule  is  locally  upheld 
in  both  countries ;  unless,  at  all  events,  the  local  statute  asserts 
local  public  policy  to  the  extent  of  declaring  such  marriages 
void,  or  the  marriage  is  one  deemed  "  contrary  to  the  law  of 
nature  as  generally  recognized  in  Christian  countries."  3 


The  lower  court  was  probably  influ- 
enced by  considerations  which  medical 
men  adduce,  showing  that  marriage  is 
more  essential  to  a  man's  continuous 
well-being  than  a  woman's,  and  that  a 
widow,  on  the  whole,  is  less  likely  to 
have  sufficient  reason  for  marrying 
again  than  a  man.  But  this  argument, 
if  sound,  is  perhaps  far-fetched,  and 
James,  L.  J.,  on  appeal,  treated  the 
subject  more  from  the  aspect  of  equal 
rights,  as  between  the  sexes,  in  the 
disposal  of  property.  No  act  of  parlia- 
ment or  decision  of  a  court,  he  ob- 
served, established  any  distinction  here 
between  the  second  marriage  of  man  or 
woman,  and  he  knew  of  no  reason  for 
making  it. 

1  It  is  hehl  that  a  gift  to  one's  widow 
on  condition  that  she  retire  immediately 
into  a  convent  is  upon  a  good  condition 
precedent.  Duddy  v.  Gresham,  39  L. 
T.  n.  s.  48.  Also,  that  it  is  a  good  con- 
dition subsequent  which  forfeits  a  gift 
to  one's  brother  in  case  he  marries  "  a 
domestic  servant,"  or  one  of  lower  de- 


gree, degrading  his  own  family.     Jen- 
ner  v.  Turner,  29  W.  R.  99. 

2  Jones  v.  Jones,  1  Q.  B.  D.  279. 
And  see  Hogan  v.  Curtin,  88  N.  Y. 
162;  Schouler,  Wills,  §  603. 

3  Warrender  v.  Warrender,  2  CI.  & 
Fin.  488;  Sutton  v.  Warren,  10  Met. 
451  ;  157  Mass.  75,  per  Field,  C.  J.  As 
where,  for  instance,  parties  go  to  an- 
other State  to  evade  restrictions  as  to 
an  infant's  marrying  age,  or  restric- 
tions following  divorce.  Under  the 
English  "legitimacy  declaration  act" 
(21  &  22  Vict.  c.  93)  the  marriage  of  a 
retired  British  officer  to  a  Japanese 
woman  in  1886,  was  held  valid  in 
Brinkley  v.  Attorney-General,  15  P.  D. 
76,  as  sufficiently  a  "  Christian  mar- 
riage," upon  proof  that  in  Japan  mar- 
riage is  monogamous,  and  excludes  all 
other  spouses.  As  to  recognizing  In- 
d  an  tribal  marriages,  see  76  Mich.  498 ; 
97  Mo.  80.  Cf.  as  to  informal  mar- 
riages, 155  Mass.  425 ;  Meister  v.  Moore, 
96  U.  S.  76  ;  supra,  §  29. 

61 


34  THE   DOMESTIC    RELATIONS.  [PART   II. 


CHAPTER   II. 

EFFECT   OF   MARRIAGE;    PERSON   OF   THE   SPOUSE. 

§   33     Effect    of    Marriage;    Order    of    Legal    Investigation. — 

When  the  parties  to  a  lawful  marriage  have  once  completed 
the  ceremony,  or,  as  it  is  said,  have  executed  the  contract  of 
marriage,  they  are  admitted  into  the  marriage  relation,  and 
their  mutual  rights  and  obligations  become  at  once  bounded, 
protected,  and  enforced  by  the  general  law  of  husband  and 
wife.  What  that  law  is  will  constitute  the  topic  of  discussion 
in  this  and  succeeding  chapters  of  this  part.  We  have  already 
alluded  to  the  coufusion  and  uncertainty  which  exist  at  the 
present  day,  and  particularly  in  many  of  the  United  States,  in 
the  law  of  husband  and  wife,  owing  to  the  transition  period 
through  which  we  seem  to  be  passing  from  the  marriage  rela- 
tion of  the  common  law  to  that  known  to  the  civil  law.1  Our 
subject  will  be  most  conveniently  treated  by  taking  up  the 
common-law  doctrine  first,  and  thoroughly  examining  its  prin- 
ciples; then  passing  to  the  modern  or  civil-law  doctrine  for 
discussion  in  like  manner.  First,  then,  the  rights  and  disabili- 
ties of  marriage  on  the  coverture  scheme  ;  secondly,  the  rights 
and  disabilities  of  marriage  on  the  separate  existence  scheme, 
or  with  the  innovations  which  equity  and  modern  statutes 
have  made. 

But  since  these  rights  and  disabilities  have  varied  less  with 
regard  to  the  wife's  person  than  in  other  respects,  we  may  here 
investigate  those  general  principles  of  the  common  law  which 
concern  the  person  of  the  spouse,  once  and  for  all. 

§  34.  Person  of  the  Spouse;  Coverture  Principle;  Husband 
Head  of  Family. — The  general  principle  of  coverture,  as  de- 
fined  by  Blackstone  and  other  common-law  writers,  is  this: 
that  by  marriage  the  husband  and  wife  become  one  person  in 

1  Sec  Introductory,  §§  4-8. 
62 


CHAP.  II.]        PERSON  OF  THE  SPOUSE.  §  34 

law ;  that  is  to  say,  the  very  being  or  legal  existence  of  the 
woman  is  suspended  during  the  marriage,  or,  at  least,  is  in- 
corporated and  consolidated  into  that  of  the  husband,  under 
whose  wing,  protection,  and  cover  she  performs  everything ;  and 
is  therefore  called  in  the  law-French  a  feme  covert,  fcemina  viro 
co-wperta ;  is  said  to  be  covert-baron,  or  under  the  protection  and 
influence  of  her  baron  or  lord ;  and  her  condition  during  her 
marriage  is  called  her  coverture?-  For  this  reason  the  term 
applied  to  the  relation  of  husband  and  wife  in  the  old  books  is 
baron  and  feme.  Upon  this  fundamental  principle  depend,  at 
the  common  law,  the  general  rights,  duties,  and  disabilities  of 
marriage.  But  this  very  definition  shows  inaccuracy,  to  say 
nothing  of  unfairness  of  application.  Here  are  two  conflicting 
notions :  one  that  the  existence  of  the  wife  is  actually  lost  or 
suspended ;  the  other  that  there  is  still  an  existence,  which 
is  held  in  subordination  to  the  will  of  her  lord  and  master, 
which  last  the  word  coverture  fitly  expresses.  It  will  appear 
in  fact  that  while  some  of  the  wife's  disabilities  seem  based 
upon  the  one  notion,  others  are  based  upon  the  latter,  and 
probably  more  correct  one.  The  wife's  disabilities  are  deemed 
by  Blackstone  "  for  the  most  part  intended  for  her  protection 
and  benefit."  And  he  adds,  by  way  of  rhetorical  period,  "  so 
great  a  favorite  is  the  female  sex  of  the  laws  of  England  ! " 
a  proposition  which  his  commentators  have  gravely  proceeded 
to  dispute  and  dissect,  and,  it  must  be  added,  not  without  good 
success.2 

The  husband's  right  of  dominion  is  therefore  fully  recognized 
at  the  common  law.  And  never  was  the  English  doctrine,  de- 
spite its  failings,  set  forth  in  more  terse  and  forcible  language 
than  in  the  words  of  Sir  Thomas  Smith :  "  The  naturalest  and 
first  conjunction  of  two  towards  the  making  a  further  society 
of  continuance  is  of  the  husband  and  wife,  each  having  care  of 
the  family :  the  man  to  get,  to  travel  abroad,   and  to  defend  ; 


1  1  Bl.  Com.  442;  Co.  Litt.  112;  2  a  strain  of  playful  gallantry,  not  un- 
Kent,  Com.  129.  common    with   lecturers.     Even   Chan- 

2  1  Bl.  Com.  445,  notes  by  Christian,  cellor  Kent's  observations  are  rot  free 
Hargrave,  and  otbers.  It  is  probable  from  suspicion.  See  2  Kent.  '  n.  182, 
that  Blackstone  used  this  expression  in  closing  sentence  at  foot  of  the  p age. 

63 


§  35  THE   DOMESTIC   RELATIONS.  [PART   II. 

the  wife  to  save,  to  stay  at  home,  and  to  distribute  that  which 
is  gotten  for  the  nurture  of  the  children  and  family ;  which  to 
maintain  God  has  given  the  man  greater  wit,  better  strength, 
better  courage,  to  compel  the  woman  to  obey  by  reason  or  force ; 
and  to  the  woman  beauty,  fair  countenance,  and  sweet  words, 
to  make  the  man  obey  her  again  fur  love.  Thus  each  obeyeth 
and  commandeth  the  other;  and  they  two  together  rule  the 
house  so  long  as  they  remain  in  one."  * 

In  accordance  with  these  principles,  and  perhaps,  too,  the 
laws  of  nature  and  divine  revelation,  the  husband  is  the  head 
of  the  family,  and  dignior  persona.  As  to  the  more  strictly  per- 
sonal consequences  of  the  marriage  union,  his  rights  and  duties 
have  suffered  no  violent  change  at  our  modern  law.  It  is  fur 
the  wife  to  love,  honor,  and  obey  :  it  is  for  the  husband  to 
love,  cherish,  and  protect.  The  husband  is  bound  to  furnish 
his  wife  with  a  suitable  home ;  to  provide,  according  to  his 
means  and  condition  of  life,  for  her  maintenance  and  support ; 
to  defend  her  from  personal  insult  and  wrong ;  to  be  kind  to 
her;  to  see  that  the  offspring  of  their  union  are  brought  up 
with  tenderness  and  care ;  and  generally  to  conduct  himself, 
not  according  to  the  strict  letter  of  the  matrimonial  contract, 
but  in  its  spirit.  So  long  as  he  does  this,  his  authority  is 
acknowledged  at  the  common  law  and  fairly  upheld  even  to 
this  later  date;  and  if  the  wife's  wishes  and  interests  clash 
with  his  own,  she  must  yield.2 

§  35.  Duty  of  Spouses  to  Adhere  or  Live  Together.  —  Mar- 
riage necessarily  supposes  a  home  and  mutual  cohabitation. 
Each  party  lias  therefore  a  right  to  the  society  of  the  other. 
They  married  to  secure  such  society.  And  the  obligation  rests 
u\»>u  both  to  live  together, —  or,  as  the  expression  sometimes 
,  to  adhere.     This  is  the  universal  law.3     Its  observance  is 

1  Commonwealth  of  England,  Rook  ver  v.  Oliver,  1  ITag.  Con.  3fi!  ;  4  Eng. 

1,  cli.  •!,  quoted    in   Bing.    Inf.  &  Cov.  Ec.  429.     Modern  statutes  recognizing 

p   i-i.  the  wife's  separate  property  or  charging 

-  Lord  Stowell  observes  that  the  law  family  necessaries  upon  the  property  of 

intrusts  the  husband   not  only  with  a  both  spouses  do  not  deprive  the  husband 

certain  degree  "f  care  ami  protection,  of  his  legal  consideration   as  head  of 

l. nt  also  "  with  authority  over  his  wife,  the  hon  e     Tyler  v.  Sanborn,  128  111. 

He  m  t<>  practise  tenderness  and  affec-  186;  Yarhorough  v.  State,  80  Ga.  396. 
tion,  am!  obedience  is  her  duty."    Oli-        3  1  Fraser,  Dom.  Bel.  447, 452. 

64 


CHAP.  II.]  PERSON   OF   THE    SPOUSE.  §  36 

essential  to  the  mutual  comfort  of  husband  and  wife,  and  the 
well-being,  if  not  the  existence,  of  their  children.  But  to  this 
rule  there  are  obvious  exceptions.  The  wife  is  not  bound  to 
live  with  her  husband  where  he  is  imprisoned,  or  has  otherwise 
ceased  to  be  a  voluntary  agent  and  to  perform  the  duties  of  a 
husband.  Nor  if  he  is  banished.  For  marriage  does  not  force 
the  parties  to  share  the  punishment  of  one  another's  crimes. 
This  was  the  rule  of  the  civil  as  it  is  that  of  the  common  law.1 
And  in  general  such  causes  as  would  justify  divorce  in  any 
State  justify  the  innocent  party  in  breaking  off  matrimonial 
cohabitation  likewise.  But  partial  and  temporary  separation 
for  purposes  connected  witli  the  husband's  profession  or  trade  — 
as,  for  instance,  where  he  is  an  army  officer  —  constitutes  no 
breach  of  the  marriage  relation  unless  continued  beyond  ne- 
cessary and  reasonable  bounds,  or  accompanied  by  negligence  to 
provide,  while  absent,  for  the  maintenance  of  wife  and  family. 
And  under  some  other  circumstances  cohabitation  may  be 
properly  allowed  to  cease  for  a  time  without  involving  the 
breach  of  marital  obligations.2 

§  36.  Breach  by  Desertion,  &c. ;  Duty  of  making  Cohabitation 
Tolerable. — This  subject  is  most  commonly  considered  where 
redress  is  sought  because  one  or  the  other  party  deserts,  —  such 
desertion  formerly  calling  for  the  restitution  of  conjugal  rights, 
but  in  these  days  furnishing  rather  a  cause  of  divorce  to  the 
injured  spouse,  not  to  speak  of  the  enlargement  of  an  aban- 
doned wife's  rights  and  responsibilities,  despite  the  rules  of 
coverture.  These  matters,  and  particularly  divorce  for  deser- 
tion, are  found  duly  considered  in  other  books,  and  the  duty 
of  matrimonial  adherence  more  fully  developed.3  We  observe 
here  that,  in  conformity  to  the  world's  customs  and  general 
principle,  it  is  the  wife's  actual  withdrawal  from  home  which 
admits  the  less  readily  of  a  justifying  explanation,  and  exposes 
the  pair  to  scandal4     But  the  husband  may  be  at  fault  by  mak- 

1  Co.  Litt.  133;  1  Bl.  Com.  443 ;  1  tian  v.  Husband,  17  Martin  (La)  60; 
Fraser,  Dom.  Eel.  448;  2  Kent,  Com.     Watts  v.  Watts,  160  Mass.  464. 

154.  3  See  Schouler,  Hns    &  Wife,  IV. rt 

2  See  2  Kent.  Com.  181  ;  1  Fraser,  IX.  ;  1  Bishop,  Mar.  &  Div.  §§771-810. 
Dom.  Rel.  240  et  seq. ;  lb.  447  ;  Chre-  4  Tb. ;  Starkey  v.  Starkey,  21  N.  J. 

Fq.  135. 

5  65 


§  36  THE   DOMESTIC  RELATIONS.  [PART   II. 

ing  the  home  unfit  for  an  honest  wife  to  occupy  with  dignity, 
or  by  turning  his  wife  out,  or  even  by  encouraging  her  to  leave 
it  when  it  was  right  that  she  should  remain.1  It  happens  often 
that  the  husband  instead  forsakes  the  home,  leaving  the  wife 
in  it,  such  withdrawal  being  rightful  or  wrongful  according  to 
the  circumstances.2 

Mere  frailty  of  temper  on  a  wife's  part,  not  shown  in  marked 
and  intolerable  excesses,  would  hardly  justify  a  husband  in 
withdrawing  the  protection  of  his  home  and  society.3  But  it 
is  held  that  the  wife's  violent  and  outrageous  behavior  justifies 
a  husband  in  seeking  divorce  from  bed  and  board,  and,  seem- 
ingly, in  leaving  her.4  The  moral  duty  of  living  together  in- 
volves, doubtless,  the  reciprocal  obligation  of  making  that  life 
agreeable,  according  to  the  true  status  of  the  married  parties ; 
but  the  extent  of  the  legal  duty  is  not  so  easily  definable. 
Upon  the  point  of  redress,  in  fact,  codes  widely  differ;  the 
practical  difficulty  being,  under  our  laws,  that  married  spouses 
have  little  remedy  until  it  comes  to  the  last  extremity  of  di- 
vorce.5 Manifestations  of  bad  temper  on  one  side  must  nec- 
essarily weaken  the  duty  of  adherence  on  the  other ;  extreme 
cruelty,  or  cruel  and  abusive  treatment  (which  on  a  husband's 
part  may  consist  in  mental  torturing,  and  not  in  physical  vio- 
lence alone)  is  now  frequently  made  a  legal  cause  of  divorce ; 
yet,  at  the  same  time,  mutual  forbearance  and  self-sacrifice  are 
essential  to  the  well-being  of  every  household;  marriage,  when 
rightly  considered,  working  a  harmony  of  character  by  the 
constant  attrition  to  which  the  two  natures  are  exposed ;  and 
mere  bickerings  and  misunderstandings  ought  not  to  afford  legal 
cause  for  separation.  Ill-treatment,  too,  followed  by  a  peaceable 
and  on  the  whole  harmonious  life  together,  is  not  to  be  brought 
up  long  after  against  the  offender.6 

Under  this  head  we  may  add  that  the  duty  of  cohabitation 

1    McOormick  v.  McOormick,  19  Wis.  639.     Nor  even  her  occasional   intem- 

172.  perance,  semble,  according  to  Heyes  v. 

*  McClurg'fl   Appeal,   66   Penn.   St.  Heyes,  13  P.  D.  11. 
866.     Bee,  a     to  divorce  for  desertion,         4  Lynch  v.  Lynch,  83  Md.  328. 
Bchonler,  Hub   &  Wife,  £§  515-523.  ■■  Sec,    as    to    divorce    for    cruelty, 

■■  Jfeatman  v.  JTeatman,  L.  R.  l  P.  &  Schouler,  Hns.  &  Wife,  §§  507-514. 
D.  48'J;  Johns., ii  v.  Johnson,  49  Mich.         ,;  lb,;  49  Mich.  600. 

66 


CHAP.  II.]        PERSON  OF  THE  SPOUSE.  §  37 

or  adherence  is  uot  fulfilled  by  literal  or  partial  compliance. 
Thus  the  refusal  of  sexual  intercourse  and  the  nuptial  bed, 
without  good  excuse,  is  a  serious  wrong  which  husbands,  at 
all  events,  are  disposed  to  construe  into  justifying  ground  for 
divorce.1  Living  in  the  same  house,  but  wilfully  declining 
matrimonial  intimacy  and  companionship,  is  per  se  a  breach  of 
duty,  tending  to  subvert  the  true  ends  of  marriage.  So,  too,  a 
husband  who  unreasonably  withdraws  cohabitation  from  his 
wife  may  be  deemed  guilty  of  legal  desertion,  even  though  he 
continue  to  support  her.2  But  sexual  intercourse,  the  use  of 
the  same  chamber,  or  the  occupation  of  the  same  bed  should 
be  mutually  regulated  with  considerations  of  health  as  well  as 
kindly  forbearance  ;  and  a  husband  who  wantonly  abuses  his 
wife  so  as  to  inflict  needless  pain  and  injury  upon  her,  who  re- 
gards only  his  animal  cravings  and  disregards  her  health  and 
delicate  organization,  is  guilty  of  legal  cruelty.3  Mere  prefer- 
ence, however,  for  living  apart,  founded  upon  agreeable  and 
convenient  considerations,  ought  not,  even  though  one's  health 
might  be  the  better  for  it,  be  indulged  in  by  husband  or  wife.4 
§  37.  The  Matrimonial  Domicile.  —  As  there  must  be  a 
home,  so  there  is  also  a  matrimonial  domicile  of  the  parties 
recognized  by  universal  law.  And  the  husband,  as  dignior  per- 
sona, has  the  right  to  fix  it  where  he  pleases.  The  wife's 
domicile  merges  in  that  of  her  husband.  Grotius  says:  " De 
domicilio  constituere  jus  est  marito."  5  But  this  applies  only  to 
the  real  domicile  of  the  husband  ;  not  to  a  fictitious  place  of 
residence  which  he  may  take  up  for  a  special  purpose,  or  as  an 
involuntary  agent.  In  a  genuine  sense  the  domicile  of  the 
husband  becomes  that  of  the  wife,  and  wherever  he  goes  she  is 
bound  to  go  likewise ;  not,  however,  unless  his  intent  be  bona 
fide  and  without  fraud  upon  her  person  or  property  rights.6     In 

1  See  Schouler,  Hus.  &  Wife,  §  528  ;  569  ;  Mayhew  v.  Mayhew,  61  Conn.  233. 
Southwick  v.  Southwick,  97  Mass.  See  Shaw  v.  Shaw,  17  Conn.  189,  criti- 
327 ;    1    Bishop,  Mar.   &  Div.   5th   ed.     cised  in  1  Bishop,  §  7G0. 

§  778.  4  Morse  v.  Morse,  65  Vt.  112. 

2  Yeatman  v.  Yeatman,  L.  R.  1  P.  &  5  2  Kent,  Com.  181  ;  1  Fraser.  Dom. 
D.  489.  Rel.  240  et  seq. ;  lb.  447. 

3  lb. ;  Moores  v.  Moores,  1  C.  E.  6  1  Fraser,  Dom.  Rel.  447,  448  ;  1 
Green,  275  ;  Melvin  v.  Melvin,  58  N.  H.  Burge,  Col.  &  For.  Laws,  260;  Whar 

67 


§  38  THE   DOMESTIC    RELATIONS.  [PART   II. 

certain  cases  the  wife  may  perhaps  be  said  to  acquire  a  domi- 
cile or  legal  forum  for  divorce  and  similar  purposes.1  But  the 
exception,  if  it  exist,  is  limited  by  the  just  necessity.  To  a 
wife  living  apart  from  her  husband,  no  separate  domicile  is 
conceded  for  testamentary  purposes.2  Nor  does  a  change  of 
the  wife's  abode  change  the  husband's  or  the  matrimonial 
domicile.3  In  general,  where  husband  and  wife  live  together 
the  domicile  of  the  wife  follows  that  of  the  husband.4 

§  38.  Same  Subject ;  Husband's  Right  to  establish  Domicile. 
—  Any  contract,  therefore,  which  the  husband  may  make  with 
his  wife  or  her  friends,  before  marriage,  not  to  take  her  away 
from  the  neighborhood  of  her  parents,  is  void.  Public  policy 
repudiates  all  contracts  in  restraint  of  such  marital  rights. 
There  might  be  circumstances  under  which  such  a  promise 
would  be  reasonable,  but  at  best  it  can  create  a  moral  obliga- 
tion only.  Nor  is  a  secret  compact  of  the  parties  before  mar- 
riage that  they  would  not  live  together  a  binding  contract  to 
supersede  their  open  vows  at  the  ceremony.5  The  husband  has 
the  right  to  establish  his  domicile  at  any  time  wherever  lie 
pleases,  and  the  wife  must  follow  him  through  the  world.6  If 
she  refuses  to  go  with  him,  his  own  conduct  being  upright  and 
honorable  in  the  premises,  she  places  herself  in  the  wrong,  and 
while  she  persists  he  is  not  bound  to  support  and  maintain 
her.7 

But  the  courts  of  our  day  hesitate  often  to  apply  a  rule  so 
apparently  harsh  as  that  announced  in  the  last  sentence.  With 
the  increasing  regard  for  female  privileges  has  grown  up  a 
strong   disposition    to   reduce    the    husband's   right   over    the 


ton,  Confl.  Laws,  §§  43-47.      See  Von  Scholos  v.  Murray  Iron  Works  Co.,  44 

Hoffman   v.   Ward,  4   Redf.  Surr.  244;  Iowa,    190;    Johnson    v.    Johnson,    12 

King  v.  Foxwell,3Ch.D.518;  Schonler,  Bush,  485;  Anderson  v.  Watt,  138  U.S. 

Huh.  &  Wife,  §  60.     And  see  elemen-  694. 
fcary  works  on  Domicile.  4  77  Ca.  84. 

1  See    Divorce,  post,   c.    17.      Some  6  Franklin  ?\  Franklin,  154  Mass.  515. 

8tates  now  incline  to  enlarge  a  separated         fl  Hair  v.  Hair,   10  Rich.  Eq.  163; 

wife's  right  of  domicile.    43  La  Ann.  McAfee    v.    Kentucky    University,    7 

140;   129111.386.  Bnsh,    135;    Gahn   v.   Darhv,    36*  La. 

-   Paulding's  Will,  1    Tuck.  (N.  Y.)  Ann.  70. 
47.  '  Babbitt   v.  Babbitt,  69  111.    277; 

*'  Porterfleld  v.  Angnsta,87  Me.  556;  Morse  v.  Morse,  65  Vt.  112. 

68 


CHAP.  II.]        PERSON  OF  THE  SPOUSE.  §  38 

matrimonial  domicile  to  a  sort  of  divisum  imperium.  And 
this  difficulty  becomes  aggravated  where  the  wife  has  the 
fortune  which  supports  the  family,  and  the  husband  has  not. 
The  question  is  not  new,  whether  reasonable  exceptions  to  this 
rule  may  not  exist ;  as,  for  instance,  where  the  husband  pro- 
posed to  take  the  wife  into  an  enemy's  country  while  war  was 
waging,  or  on  a  journey  perilous  to  her  life.1  Such  exceptions 
may  be  justified,  it  is  generally  admitted,  on  the  ground  that 
the  wife  would  be  thereby  exposed  to  bodily  harm.  But 
whether  the  apprehension  be  that  of  personal  violence,  or  ill 
health  from  the  fatigue  of  a  journey  or  the  change  of  climate, 
little  favor  seems  to  have  been  shown  to  the  wife  either  at  the 
English  or  Scotch  law,  unless  the  circumstances  rendered  a 
change  of  domicile  on  her  part  equivalent  to  a  moral  suicide.2 
At  the  present  day  a  rule  less  stringent  would  doubtless  be 
applied.  A  husband  would  not  be  permitted  to  remove  his 
wife  to  some  remote  and  undesirable  place  for  the  sake  of 
punishing  or  tormenting  her,  or  so  as  to  compel  her  to  stay 
alone  where  he  did  not  mean  to  reside  himself;  for  this  would 
not  be  fixing  the  matrimonial  domicile  with  honest  intent. 
Nay,  more,  there  are  several  recent  decisions  in  this  country 
which  point  to  an  obligation  on  the  husband's  part  to  show 
reasonable  cause  why  his  wife  should  follow  him  when  he 
changes  his  abode.3 

This  later  uncertainty  in  the  law  is  unfortunate.  Where 
a  pair  disagree  in  the  choice  of  a  home,  either  the  right  of 
decision  must  belong  to  one  of  them,  or  the  court  should  sit 
as  umpire.  No  one  has  suggested  that  the  wife  should  choose 
the  domicile,  nor  can  judicial  interference  be  well  called  in, 
except  to  divorce  the  parties.  Yet,  without  a  home  in  com- 
mon, of  what  avail  is  matrimony  ?  We  cannot  but  regret  that 
any  of  our  courts  should  seem   to  legalize  domestic  discord ; 

1  Boyce  v.  Boyce,  23  N.  J.  Eq.  337.  husband    dealing   harshly  with  a   wife 

2  See  1  Eraser,  Dom.  Bel.  448.  upon    an   unfair  allegation   of   her   in- 

3  Bishop  v.  Bishop,  30  Penn.  St  412;  sanity  may  be  compelled  to  support  her 
Gleason  v.  Gleason,  4  Wis.  64 ;  Powell  at  the  house  of  her  own  sister  with 
».  Powell,  29  Vt.  148.  See  Moffatt  v.  whom  she  takes  refuge.  Senft  v.  Car 
Moffatt,  5  Cal.  280 ;  Cutler  v.  Cutler,  2  penter  (1894),  R.  I. 

Brews.  (Pa.)  511  ;  43  111.  App.  370.     A 

69 


§  40  THE   DOMESTIC    RELATIONS.  [PART   II. 

that  there  should  be  good  American  authority  to  sanction  the 
wife's  refusal  to  accompany  her  husband  on  any  such  trivial 
pretext  as  "the  dislike  to  be  near  his  relatives."1  Perhaps, 
however,  the  harsh  remedy  usually  sought  to  be  applied  in 
modern  cases  —  divorce  for  the  wife's  wilful  desertion  —  may 
tempt  our  tribunals  to  relax  the  old  doctrine  of  conjugal  obe- 
dience for  her  benefit.  For,  after  all,  the  decision  is  in  favor  of 
prolonging  the  marriage  relation.2 

§  39.  Domicile  relative  to  Alien  and  Citizen.  —  As  corollary 
of  the  general  proposition  already  announced,  it  is  held  that 
an  alien  woman  marrying  with  a  citizen  of  the  United  States 
becomes,  by  virtue  of  such  marriage,  a  citizen  also,  with  the 
usual  capacity  as  to  purchase,  descent,  and  inheritance;3  and 
that  of  aliens  intermarried,  if  the  husband  becomes  a  natural- 
ized citizen,  the  wife  in  like  manner  is  naturalized,  even  though 
she  has  not  yet  migrated  from  her  native  country.4 

§  40.  Change  of  Wife's  Name  by  Marriage.  —  Marriage  at 
our  law  does  not  change  the  man's  name,  but  it  confers  his 
surname  upon  the  woman.  Until  a  decree  of  divorce,  giving 
a  married  woman  leave  to  resume  her  maiden  name,  goes  into 
full  effect,  or  widowhood  is  succeeded  by  a  new  marriage  and 

1  Powell  v.  Powell,  29  Vt.  148.  correspondence   continued    until    1851, 

2  The  English  rule  as  to  the  wife's  when  the  husband  asked  her  to  return, 
duty  of  adherence  still  continues  strict,  and  provided  funds  for  her  passage,  but 
A  wife  petitioned  for  divorce  on  the  she  wrote  that  her  health  would  not 
ground  of  her  husband's  desertion,  permit  her  to  do  so.  Here  all  corre- 
The  facts  showed  that  shortly  after  spondence  and  intercourse  ceased  until 
her  marriage  she  went  with  her  hus-  1856,  when  an  allowance  was  again 
band  ti>  .Jamaica,  where  he  held  an  ap-  effected  through  the  intervention  of  a 
pointment  from  which  he  derived  not  relative ;  this  the  husband  continued 
more  than  .£100  a  year,  and  in  conse-  until  I860,  and  then  stopped  it.  He 
qnence  of  his  slender  income  she  had  appears  to  have  led  a  loose  life  after 
to  put  tip  with  some  hardship.  Her  the  wife's  refusal  to  return.  The  court 
health  suffered,  and  in  less  than  a  year,  held  that  these  circumstances  did  not 
namely,  in  I  sit;,  she  returned  to  Eng-  constitute  desertion  on  the  husband's 
land  Her  husband  continued  abroad,  part,  nor  entitle  her  to  divorce.  Keech 
during  the  greater  part  of  the  time  at  v.  Keech,  L.  P.  1  P.  &  1).  041  (1868). 
Jamaica,  where  he  BUCceeded  in  getting  Adultery  being  proved,  however,  di- 
a  more  lucrative  appointment.     Winn  vorce  was  granted  on  that  ground. 

she  left  him  for  England  he  acted  8  Lnhrs  v.  Kimcr,  80  N.  Y.  171; 
kindly    to    Ikt,  promised   to   allow   her     Kelly  v.  Owen,  7  Wall.  496. 

£30  a  year,  hnl  made  no  arrangement  4  Kelly  v.  Owen,  7  Wall.  496;  Head* 
for    a    permanent    separation,     Their    man  v.  Hose,  63  (Ja.  458. 

70 


CHAP.  II.]  PERSON   OF   THE  SPOUSE.  §  41 

another  husband,  she  goes  by  her  former  husband's  surname. 
This  is  English  and  American  usage.  And  with  this  actual 
marriage  name,  it  would  appear  that  a  wife  can  only  obtain 
another  name  by  reputation.1  But  in  consideration  of  the  rule 
that  a  person  has  the  right  to  be  known  by  any  name  he  or  she 
chooses,  proceedings  under  the  assumed  name  of  a  married 
woman  have  been  upheld  after  judgment;2  and  obligations 
incurred  by  or  with  third  parties  in  her  maiden  name  are  held 
mutually  binding.3 

§  41.  Right  of  one  Spouse  to  the  other's  Society ;  Suit  for 
Enticement;  Alienation  of  Affections,  &c.  —  Each  spouse  is  en- 
titled to  the  society  and  companionship  of  the  other.  Inas- 
much as  the  husband  is  thus  entitled,  he  may  recover  his  wife 
from  any  person  who  would  withhold  or  withdraw  her  from 
him.  This  is  a  well-understood  principle  the  world  over.4 
And  the  common  law  gives  him  the  right  to  sue  for  damages 
all  persons  who  seek  to  entice  her  away,  or  induce  her  to  live 
apart  from  him.6  But  in  such  cases  malice  and  improper  mo- 
tive are  always  to  be  considered ;  and  parents  and  near  rela- 
tives stand  on  a  drffereut  footing  from  strangers.  So  is  the 
previous  conduct  of  the  husband  towards  his  wife  a  material 
element  to  be  considered ;  since  this,  and  not  the  interference 
of  others,  may  have  occasioned  the  separation.  It  is  one  thing 
to  actively  promote  domestic  discord,  but  quite  another  to 
harbor,  from  motives  of  kindness  and  humanity,  one  who  seeks 
shelter  from  the  oppression  of  her  own  lawful  protector.  A 
just  necessity  for  the  intervention,  honest  intent,  honest  advice, 
with  the  intent,  not  of  profiting  personally  by  the  separation 
or  divorcement  of  the  pair,  but  so  as  to  restore  harmony  or  do 
justice,  should  be  a  proper  defence  against  the  husband's  suit.6 

Yet  such  conduct,  whatever  the  motives,  is,  on  the  part  of 
male  strangers,  exceedingly  perilous,  generally  open  to  miscon- 

1  Fendall  v.  Goldsmied,  2  P.  D.  263.  Thompson,     Wright,     636  ;     Rabe     v. 

2  Clark  r.  Clark,  19  Kans.  522.  Hanua,   5    Ham.    530;    47    Barb.   120; 

3  Lane  v.  Duchac,  73  Wis.  646 ;  96  Fratini  v.  Caslini,  66  Vt.  273 ;  Rinehart 
Cal.  609.  v  Bills,  82  Mo.  534 ;  Bennett  v.  Smith, 

4  1  Fraser,  Dora.  Rel.  240,  241.  21  Barb.  439;  30  Barb.  663;  Modisett 

5  1  Chitty,   Pleading,   91 ;    Hutche-  v.  MePike,  74  Mo.  636. 

eon  v.  Peck,  5  Johns.    196;    Friend  v.  6  Tasker  v.  Stanley,  153  Mass.  148. 

71 


§  41  THE    DOMESTIC    RELATIONS.  [PART   II. 

struction.  and  never  to  be  encouraged.  They  should  leave  the 
parties  to  their  lawful  remedies  against  one  another.  With 
parents  it  is  different.  There  are  several  cases  in  the  American 
reports  where  a  father  is  not  only  held  to  be  absolved  from 
liability  for  sheltering  his  daughter,  who  has  fled  from  a 
drunken  and  profligate  husband,  but  even  stimulated  to  do  so. 
"  A  father's  house,"  says  Chancellor  Kent,  "  is  always  open  to 
his  children  ;  and  whether  they  be  married  or  unmarried,  it  is 
still  to  them  a  refuge  from  evil  and  a  consolation  in  distress. 
Natural  affection  establishes  and  consecrates  this  asylum."  * 
But  this  does  not  justify  even  a  parent  in  hostile  interference 
against  the  husband:  for  the  latter's  rights  are  still  superior; 
and  the  father  must  give  up  his  daughter  and  the  marriage 
offspring,  whenever  she  wishes  to  return,  unless  the  proper 
tribunal  has  decreed  otherwise ;  though  he  might,  we  suppose, 
by  fair  arguments,  urged  to  promote  her  true  good,  seek  to 
dissuade  her  from  returning.  The  parent  ought  to  be  free  to 
give  good  advice  honestly,  at  all  events,  to  a  married  daughter 
who  seeks  it  in  distress.  The  legal  doctrine  seems  to  be  this, 
that  honest  motives  may  shield  a  parent  from  the  consequences 
of  indiscretion,  while  adding  nothing  to  the  right  of  actual 
control,  —  the  intent  with  which  the  parent  acted  being  the 
material  point,  rather  than  the  justice  of  the  interference ;  that 
a  husband  forfeits  his  right  to  sue  others  for  enticement,  where 
his  own  misconduct  justified  and  actually  caused  the  separa- 
tion ;  but  that  otherwise  his  remedy  is  complete  against  all 
persons  whomsoever,  who  have  lent  their  countenance  to  any 
scheme  for  breaking  up  his  household.2 

1  Hntcheson  v.  Peck,  5  Johns.  196.  his  own   home,  and   should  raise,  edu- 

See  also  friend  v.  Thompson,  Wright,  cate,    and    provide    for    the   child    hy 

636;  Bennett  v.  Smith,  21   Barb.  4.'i'.i ;  appropriating  the  portion  of  property 

20  X.  V.  Supr.204  ;    Payne  V.  Williams,  formerly  intended  fur  the  mother's  pro- 

4   l>.ixi    583;    White   v.  Ross,  47   Mich,  vision;  that  he  should  not  he  liahle  for 

172;   in  Mich.  529 ;  89  Term.  478.  having  enticed  the  wife  away ;  ami  that 

\   curious  case  of   this  sort  came  the  plaintiff  might  visit  his  wife  and 

before    the    Supreme    Court   of    North  child  not.  exceeding  four  or  five  days  at 

Carolina  in    1849.     The  defendant  had  a  time.    The  wife  was  not  made  a  party 

enticed  away  the  wife  of  the  plaintiff,  to  the  contract,  though  it  appears   to 

The   two  afterwards  entered   into    an  have   been   made   with    her    approval, 

agreemenl  thai    the   defendant  should  The  plaintiff  afterwards  rescinded  the 

k'->  |>  the   plaintiff's   wife    and    child  at  agreement,    demanded    his    wife,    and, 

72 


CHAP.  II.] 


PERSON    OF   THE   SPOUSE. 


41 


Differences  of  sex  may  account  for  a  denial  of  the  enticement 
suit  to  the  wife,  though  her  right  to  her  husband's  society  is 
unquestionable.  Woman  claims  protection  where  man  acts  for 
himself.  There  is  some  contradiction  of  the  cases  on  this  point.1 
With  the  increase  of  divorce  facilities  the  general  principle  of 
suing  for  enticement  may  part  with  some  of  its  force  even  for 
the  husband.2  The  right  of  action  for  criminal  intercourse  with 
one's    wife   rests   on    stronger   ground  than    mere   enticement.3 


upon  refusal  of  the  defendant  to  give 
her  up,  sued  him  in  damages.  The 
court  sustained  him ;  pronouncing  the 
contract  to  be  "  neither  in  form  or  sub- 
stance a  contract  for  a  separation,  but 
simply  a  license  to  harbor  the  wife  and 
child,  securing  the  defendant  against 
any  legal  responsibility  for  so  doing 
until  withdrawn."  And  it  was  farther 
intimated  that  such  a  contract  was  ab- 
solutely void  as  against  public  policy. 
Barbee  v.  Armstead,  10  Ired.  530.  See 
also  1  Burge,  Col.  &  For.  Laws,  238,  for 
a  like  doctrine  at  the  civil  law. 

The  father's  right  to  protect  his  own 
daughter  against  a  cruel  husband  is 
strongly  asserted  in  some  of  the  latest 
cases.     88  Ky.  403. 

1  Van  Arnam  v.  Avers,  67  Barb. 
544  ;  Logan  v.  Logan,  77  Ind.  558.  But 
see  Breman  v.  Paasch,  7  Abb.  (N.  Y.) 
N.  Cas.  249 ;  Jaynes  v.  Jaynes,  39  Hun, 
40  ;  26  Fed.  R.  13. 

Great  interest  is  taken  by  women 
in  this  subject,  according  to  the 
latest  American  decisions  (1884-1895). 
Partly  upon  consideration  of  the  rules 
of  common  law,  but  still  more  because 
of  the  development  of  equal  companion- 
ship in  marriage  under  the  policy  of 
modern  legislation,  the  wife  has  been 
permitted  to  sue  other  persons  for  wrong- 
fully enticing  away  or  seducing  her 
husband,  by  the  rule  of  various  States 
in  recent  instances.  Haynes  v.  Novvlin, 
129  Ind.  581;  133  Ind.  386;  Foot  v. 
Card,  58  Conn.  1  ;  Seaver  v.  Adams, 
(1890)  X.  H;  Warren  v.  Warren,  89 
Mich.  123,  with  citations  ;  Price  v.  Price, 
(1894),  Iowa;  Bennett  v.  Bennett,  116 
N.  Y.  584.     But  the  rival  woman  should 


be  shown  to  have  enticed  knowingly 
and  directly,  so  as  actively  to  interfere 
with  a  wife's  privileges.  Waldron  v. 
Waldron,  45  Fed.  Rep.  315  Exem- 
plary damages  have  been  ruled  where 
the  injury  was  wanton  and  malicious. 
45  Fed.  Rep.  315.  Other  States,  how- 
ever, oppose  this  whole  doctrine,  which 
at  the  old  common  law  was  at  least  un- 
developed. Doe  v.  Roe,  82  Me  503  ; 
Duffies  v.  Duffies,  76  Wis.  374 ;  Hester 
v.  Hester,  88  Tenn.  270.  In  Kroessin 
v.  Keller,  Minn.  (1895),  suit  for  crim. 
con.  is  denied. 

2  A  wife  having  just  cause  for  sep- 
aration or  divorce  may  be  afforded 
shelter  by  even  a  stranger,  acting  in 
good  faith.  Modisett  v.  McPike,  74 
Mo.  636.  And  see  Tasker  v.  Stanley, 
153  Mass.  148. 

3  Michael  v.  Dunkle,  84  Ind.  544;  2 
Ld.  Raym.  809;  7  Mod.  78;  2  Chitty, 
Pleading,  855.  The  husband  may  sue, 
thus,  for  the  loss  of  his  wife's  society,  if 
he  has  not  renounced  his  marital  rights, 
although  such  criminal  converse  was 
without  her  consent,  and  caused  no 
actual  loss  of  service.  Bigaouette  v. 
Paulet,  134  Mass.  123  ;  Cross  v.  Grant, 
62  N.  H.  675.  Cf.  Neilson  v.  Brown,  13 
R.  I.  651.  That  the  plaintiff  and  his 
wife  were  divorced  before  the  suit,  is  no 
defence  ;  nor  can  the  wife  give  such  con- 
sent to  the  seduction  as  will  bar  the 
husband's  right  of  action.  Wales  v. 
Miner,  89  Ind.  118;  101  Ind.  160.  A 
husband  may  attack  the  adulterer  whom 
he  finds  engaged  in  the  criminal  act, 
and  the  latter  has  no  right  to  defend 
himself  with  a  deadly  weapon.  Drys- 
dale  v.  State,  83  Ga.  744 ;  §  45,  note. 

73 


§  43  THE   DOMESTIC   KELATIONS.  [PART   II. 

And  aside  from  debauchery  or  enticement,  the  husband's 
action  lies  for  the  alienation  with  bad  motives  of  his  wife's 
affections.1 

§  42.  Husband's  Duty  to  render  Support.  —  This  subject 
will  be  considered  later  in  treating  of  the  wife's  necessaries, 
when  it  will  also  appear  that  our  married  women's  acts  tend 
to  certain  changes,  not  so  much  of  principle  as  application,  by 
extending  the  liability  for  family  supplies  to  property  such  as 
wives  now  hold  to  their  separate  use.2  The  general  rule  of  law 
is  that  the  husband,  the  spouse  who  holds  and  fills  the  purse, 
is  bound  to  provide  the  family  support  and  means  of  living. 
The  style  of  support  requisite  —  of  lodging,  food,  clothing, 
medical  attendance,  and  the  like  —  is  such  as  befits  his  means 
and  condition  of  life.  A  wife  is  not  usually  justified  in  leaving 
her  husband  and  the  common  home  so  long  as  the  husband 
treats  her  kindly,  and  provides  to  the  extent  of  his  ability,  even 
though  retrenchment  in  the  style  of  living  may  be  needful  from 
one  cause  or  another.3  And  it  is  his  habitual  conduct  in  this 
respect,  rather  than  some  isolated  instance,  which  should  be 
chiefly  regarded  in  a  divorce  for  his  neglect.4  Pecuniary  in- 
ability to  support,  especially  when  proceeding  from  no  unkind- 
ness  or  indifference  on  his  own  part,  is  held  no  grouud  for  a 
wife's  divorce.5  Nor  is  his  saving  and  frugal  disposition,  where 
he  could  afford  to  be  liberal.6  But  reducing  the  wife's  comforts 
needlessly,  and  from  sinister  motives,  she  may  justly  complain 
of,7  and  criminal  prosecution  with  recognizance  is  found  to  aid 
the  common  law  of  the  wife's  power  to  pledge  credit  in  com- 
pelling a  competent  husband  to  support  his  family. 

§  43.  Wife's  Duty  to  render  Services.  —  The  wife's  obliga- 
tion to  render  family  services  is  at  least  co-extensive  with  that 
of  the  husband  to  support  her  in  the  family,  these  services  and 
the  comfort  of  her  society  being  in  the  fact  the  legal  equivalent  of 

1  Rinebart  v.  Bills,  82  Mo.  584.  5  Brnner  v.   Brunei-,    70   Md.    105; 

2  J"'"',  §§  01-72.  Jewott,  v.  Jewett,  61  Vt.  370. 

:i  See  Sk.;m  v.  Skoan,  88  N.  J.  Eq.         6  Rankle  v.  Rankle,  96  Mich.  493. 
14ft;  James  v.  James,  5ft    N.   H.  266;  '  Boyce  V.  Boyce,  23  N.  .7.  Eq.  337. 

76  Iowa,  638.  And  see  Necessaries,  c.  8 ;  also  People 

*  JenneSB  v.  Jenness,  60  N.  II.  231.  v.  Pettit,  74  N.  Y.  320;  Schouler,  Hus. 


74 


&,  Wife.  §  67. 


CHAP.  II.]        PERSON  OF  THE  SPOUSE.  §  44 

such  support.1  Heuce,  as  it  is  held,  the  wife  of  an  insane  man 
cannot  claim  special  compensation  out  of  his  estate  for  taking 
care  of  him,  even  though  such  were  the  express  contract  be- 
tween  herself  and  the  guardian.2  Nor  can  a  wife  found  a  suit 
for  wages  promised  by  her  husband,  upon  the  marital  legislation 
giving  her  a  right  to  her  general  earnings.3  Doubtless  it  would 
be  bad  policy  to  permit  marital  services  on  either  side,  however 
meritorious,  to  become  a  matter  for  money  recompense,  and  to 
strike  a  just  balance  is  impossible. 

§  44.  Right  of  Chastisement  and  Correction.  —  Though  either 
spouse  may  be  the  more  dangerous  companion,  because  of 
greater  physique,  daring,  recklessness,  or  depravity,  nature 
gives  to  the  husband  the  usual  advantage.  In  a  ruder  state  of 
society  the  husband  frequently  maintained  his  authority  by 
force.  The  old  common  law  recognized  the  right  of  moderate 
correction,  which,  according  to  Blackstone,  was  deemed  a  privi- 
lege by  the  lower  orders  in  his  day.4  The  civil  law  went  still 
further,  permitting,  in  certain  gross  misdemeanors,  violent  flog- 
ging with  whips  and  rods.5  But  since  the  time  of  Charles  II. 
the  wife  has  been  regarded,  more  as  the  companion  of  her  hus- 
band; and  this  right  of  chastisement  may  be  regarded  as 
exceedingly  questionable  at  the  present  day.  The  rule  of  per- 
suasion has  superseded  the  rule  of  force.  Few  cases  of  impor- 
tance are  to  be  found  on  this  subject.  In  England,  not  many 
years  ago,  where  a  wife  sought  divorce  from  bed  and  board  for 
cruelty,  it  was  shown  that  the  husband  had  spit  upon  her 
pushed  and  dragged  her  about  the  room,  and  once  slapped  her 
face ;  and  upon  this  proof  the  divorce  was  granted.6  The  right 
to  inflict  corporal  punishment  upon  the  wife  has  never  been 

1  Randall  v.  Randall,  37  Mich.  563,  should  not  do  other  damage  to  her  per- 
per  Cooley,  J. ;  Grant  v.  Green,  41  Iowa,  son  "  than  what  reasonably  belongs  to 
88  ;  Stimson,  §  6401.  her  husband  for  the  purpose  of  the  gov- 

2  Grant  v.  Green,  41  Iowa,  88.  ernmeut  and  chastisement  of  his  wife 
8  Swetzer    v.    Kee,    146     111.    577  ;     lawfully." 

Blaechinska   v.    Howard    Mission,    130  5  Flagellis  et  fitbtibus  acriter  verberare 

N.  Y.  497.  uxorem.     See  1  Bl.  Com.  445. 

4  1  Bl.  Com.  444,  445.     In  Adams  v.  6  Saunders  v.   Saunders,  1   Rob  Ec. 

Adams,  100  Mass.  365,  Chapman,  C.  J.,  549.     And  see  Schouler,  Hus.  &  Wife, 

states  the  old  form  of  the  writ  of  suppli-  §  507  ;  1   Bishop,  Mar.  &  Div.  5th  ed 

cavit  for  protection  of  the  wife  against  §§  748,  754. 
her   husband ;    viz.,  that   the   husband 

75 


§  45  THE   DOMESTIC    RELATIONS.  [PART   II. 

favored  in  this  country,  and  its  exercise  would  now  generally 
justify  proceedings  for  a  divorce.  Indeed,  our  latest  State  de- 
cisions emphatically  deny  that  the  right  longer  exists  either  in 
England  or  this  country.1  It  may  be  added  that  the  wife 
should  not  chastise  her  husband  ;  nor  provoke  harsh  treatment 
by  her  own  violence,  foul  abuse,  and  misconduct.2 

But  either  spouse  may  use  force  in  self-defence.  And  the 
husband  may  restrain  his  wife  from  acts  of  violence  against 
others  as  well  as  himself  in  person  or  property,  —  most  cer- 
tainly wherever  the  law  makes  him  answerable  in  damages  for 
her  misbehavior;3  and  may  prevent  her  unwarrantable  inter- 
ference with  the  due  exercise  of  his  parental  authority. 

§  45.  Husband's  Right  of  Gentle  Restraint.  —  The  right  of 
gentle  restraint  over  the  wife's  person  rests  upon  better  author- 
ity than  that  of  chastisement.  The  right,  however,  depends 
upon  the  proposition  that  the  husband  is  dignior  persona.  And 
its  exercise  is  often  to  be  justified  in  the  courts  on  the  same 
grounds  ;  namely,  that  the  husband  must  answe*  to  others  for 
his  wife's  conduct.  Blackstone  says  that  in  case  of  any  gross 
misbehavior  the  husband  can  restrain  his  wife  of  her  liberty. 
The  later  expression  of  Kent  is  that  he  may  resort  to  "  gentle 
restraint."4  Strong  instances  for  the  exercise  of  this  right  oc- 
cur where  the  wife  has  eloped  with  a  libertine,  and  the  hus- 
band wishes  to  bring  her  home ;  or  where  she  purposes  an 
elopement,  and  he  seeks  to  prevent  it;  or,  perhaps,  where  she 
goes   recklessly  into  lewd    company.5     Restraint   may   also  be 


1  Gholston  v.  Gholston,  31  Geo.  625  ;  T.  601.  Divorce  has  been  granted 
Pillar  r.  Pillar,  22  Wis.  658 ;  Edmonds'  where  a  husband  repeatedly  threat- 
Appeal,  ">7  1  Vmi.  St.  232;  Fulgham  v.  ened  to  strike  and  kill  his  wife.  60 
State,  46   Ala.    143;    Owen  v.   State,  7  Iowa,  :v.)7. 

Tex.  - \  pi'-  ;!-'';  Gorman  '•.  State,  42  -  Knight  v.  Knight,  31  Iowa,  451, 
I  221  ;  l  Bishop,  §  754,  and  cases  and  cases  supra ;  Prichard  v.  Prichard, 
cited;  '»-'  Ky.  452.  In  State  v.  Rhodes,  3  Swab.  &  T.  523;  Trowbridge  v.  Car- 
1  l'liill.  (X.  C.)  153,  the  right  of  mod-  Lin,  12  La.  Ann.  882. 
erate  correction  was  claimed.  I'm  the  :i  2  Kent,  Com.  181  ;  People  v.  Win- 
opposite  rule  is  announced  in  the  later  ters,  2  Parker  {NT.  Y.  Cr.),  10  ;  1  HI. 
ca  "i  State  <•.  Oliver,  70  N.  C  60.  Com.  445;  Richards  v.  Richards,  1 
Corporal  chastisement  is  not  justified,  Grant,  389. 

though  the  wife   !»•  drunk  or  insolent.  4  2  Kent,  Com.  181 ;  l  HI.  Com.  445. 

Commonwealth  v.   McAfee,   108  Mass.  B  So  strongly  does  the  common  law 

158;  Pearman  v    Pearman,  1  Swab.  &  detest  conjugal  unfaithfulness,  that  the 

70 


CHAP.  II.]  PERSON    OF   THE   SPOUSE.  §  46 

justified  where  the  wife  becomes  insane,  threatens  the  husband 
with  danger,  or  wantonly  destroys  his  property.1 

So,  too,  the  husband,  by  virtue  of  his  marital  authority  over 
his  own  household,  might  be  allowed,  if  not  by  physical  force, 
at  least  by  moral  coercion,  to  regulate  her  movements  so  as  to 
prevent  her  from  going  to  places,  associating  with  people,  or  en- 
gaging in  pursuits,  disapproved  by  himself  on  rational  grounds. 
This  doctrine  has  been  asserted  in  England  ;  and  Mr.  Fraser 
carries  it  to  the  extent  of  forbidding  her  relatives  to  visit  her ; 
"  for,"  lie  observes,  "  though  the  wife  may  be  very  amiable, 
her  connections  may  not  be  so." 2  But  this  rule  is  to  be  laid 
down  with  great  caution,  and  it  may  be  considered  especially  un- 
popular in  America.  Mr.  Justice  Coleridge,  in  an  English  case, 
observes  that  the  husband's  right  must  not  be  exercised  un- 
necessarily or  with  undue  severity ;  and  that  the  moment  the 
wife,  by  her  return  to  conjugal  duties,  makes  the  restraint  of 
her  person  unnecessary,  such  restraint  becomes  unlawful.3 

Our  modern  doctrine  is  that  force,  whether  physical  or 
moral,  systematically  exerted  to  compel  the  submission  of  a 
wife  in  such  a  manner,  and  to  such  a  degree,  and  during  such  a 
length  of  time,  as  to  injure  her  health  and  threaten  disease,  is 
legal  cruelty.4  And  in  quite  recent  iustances  where  the  doctrine 
of  the  husband's  right  to  physically  constrain  his  wife  has  come 
up,  the  court  has  pronounced  practically  against  such  a  general 
right  on  his  part ;  thus  leaving  him  without  the  legal  means 
of  compulsion  by  imprisonment,  but  remitting  him  rather  to 
divorce  remedies.6 

§  46.  Regulation  of  Household,  Visitors,  &c.  —  From  the 
common-law  relation  of  husband  and  wife  it  follows,  as  our 
last  section  indicates,  that  the  general  regulation  of  a  house- 
husband  who  kills  his  wife  or  her  para-  in  Waring  v.  Waring,  2  Hag.  Con.  153  ; 
mour  in  the  act  of  adultery  is  only  guilty     1  Eng.  Ee.  210. 

of  manslaughter.     See  Regina  v.  Kelly,  3  In  re  Cochrane,  8  Dowl.  P.  C.  631. 

2  Car.  &  K.  814 ;  also  83  Ga.  744.  4  Kelly  v.  Kelly,  L.  R.  2  P.  &  D  31  ; 

1  8  Mod.  22  ;  1  Stra.  477  ;  In  re  Price,     Bailey  v.  Bailey,  97   Mass.  373.      See 
2  Fost.  &  F.;  263;  State  v.  Craton,  6     Schouler,  Hus.  &  Wife,  §§  507-510. 
Ire.  164.     And  see  1   Bishop,  Mar.  &         5  Reg.   v.  Jackson   (1891),   1   Q.  B. 
Div.  §  756.  671  ;   Buckingham  v.  Buckingham,  81 

2  1  Fraser,  Dom.  Rel.  459.     This  ob-    Mich.  89. 
eervation  was  made  by  Lord  Stowell 

77 


§  46  THE   DOMESTIC   RELATIONS.  [PART   II. 

hold  is  the  privilege  of  the  husband,  who  is  its  lawful  head. 
The  wife  in  this  respect  is  to  be  viewed  as  his  representative 
or  executive  officer,  properly  intrusted  with  domestic  details, 
and  particularly  with  the  supervision  of  female  menials  and 
their  work.  Husbands  are  sometimes  blameworthy  in  the 
course  of  such  regulation  for  pettiness,  meanness,  and  incon- 
siderateness  towards  their  wives.  And  yet  households  differ, 
and  legal  cruelty  cannot  readily  be  predicated  of  such  conduct 
further  than  that,  in  divorce  suits,  misbehavior  of  this  kind  is 
frequently  alleged  in  aggravation  of  actual  cruelty  otherwise 
practised,  and  so  as  to  give  body  to  the  latter  charge.  It  can- 
not be  called  cruelty  or  a  breach  of  marital  duty  justifying 
legal  interference,  for  a  married  householder,  however  large  his 
establishment,  to  take  the  settlement  of  the  little  bills  upon 
himself,1  or  the  hiring  and  discharge  of  the  servants. 

As  to  the  question  how  far  the  wife  is  bound  to  observe  the 
husband's  directions  in  entertainment,  the  choice  of  visitors, 
the  arrangement  of  the  rooms,  and  so  on,  the  English  rule  is 
still  strict,  or,  rather,  permissive  of  the  husband's  sway.  The 
wife  is  expected  to  conform  to  her  husband's  habits  and  tastes, 
even  to  his  eccentricities,  provided  her  health  be  not  seriously 
endangered  by  so  doing.  And  though  he  should  restrict  the 
calling  list  to  a  certain  set  agreeable  to  himself  alone,  or  inter- 
dict intercourse  with  her  family,  or  prevent  her  from  paying  a 
visit  to  his  own  relatives,  all  of  which  we  may  well  presume  to 
be  unkind  and  unreasonable,  yet  this  alone  is  not  sufficient 
ground  for  divorce.2  Nor,  as  it  has  been  held  in  this  country, 
would  divorce  be  granted  simply  because  he  had  forbade  her 
to  attend  a  particular  church  of  which  she  was  a  member.3 
Modern  American  precedent,  however,  on  all  these  points  is 
quite   scanty.     And  whether  the  husband    can  allege    miscon- 

1  Evans  v.  Evans,  1  Hag.  Con.  35,  8  Lawrence  v.  Lawrence,  3  Paige, 
115.  267.     See  74  Tex.  414. 

2  Neeld  v.  Neeld,  4  Hag.  Ec.  2f>3  ;  A  wife  cannot  stipulate  for  giving 
D  '■  lilai  -  D'Agailar,  1  Hag  Ec.  any  one  n  home  in  the  matrimonial 
773;  Waring  ».  Waring,  2  Hag.  Con.  household  aside  from  her  husband's 
153;  Shaw  v.  Shaw,  17  Conn.  189;  Ful-  wishes.  78  Mich.  17.  But  she  can 
ton  v.  Fulton,  36  Mo.  517.  license  one  to  enter  while  her  husband 

is  awav.     31  Neb.  540. 

78 


CHAP.  II.]  PERSON   OF  THE   SPOUSE.  §  48 

duct  against  Ids  wife  or  obtain  redress  on  his  part,  if  she  rebels 
against  oppressive  discipline  of  this  kind,  is  extremely  doubt- 
ful. Whims  and  caprices  of  the  husband,  submission  to  which 
endangers  the  wife's  health,  need  not  be  obeyed,  and  may 
even  be  relieved  against  as  legal  cruelty ; *  and  perhaps  the 
former  should  be  said  of  constraint  upon  religious  worship  as 
the  worshipper's  conscience  dictates ;  for  the  husband's  right 
to  manage  his  house  and  wife  must  doubtless  be  understood  to 
have  rational  limits. 

§  47.  Custody  of  Children.  —  The  custody  of  children  be- 
longed at  common  law  to  the  father.  Blackstone  observes : 
"  A  mother,  as  such,  is  entitled  to  no  power,  but  only  to  rev- 
erence and  respect."2  But  by  an  English  statute,  passed  in 
1839,  the  court  of  chancery  is  permitted  to  interfere  and  award 
the  custody  of  children  to  such  parent  as  may  be  deemed  most 
suitable.  Its  special  object  was  to  enable  married  women  who 
should  be  ill-treated  by  their  husbands  to  assert  their  rights 
without  the  fear  of  being  separated  from  their  offspring.3  In 
this  country  the  tendency  of  legislation  is  to  place  the  wife 
upon  a  more  equal  footing  with  her  husband  in  this  respect,  so 
that  husband  and  wife  together  shall  have  in  their  children  a 
joint  interest  and  control,  which  the  courts  are  to  regard  as 
distinct  only  when  the  welfare  of  these  tender  beings  makes 
judicial  intervention  necessary;4  in  which  event  the  child's 
own  good  may  be  treated  as  even  paramount  to  the  wish  of 
either   parent. 

§  48.  Remedies  of  Spouses  against  each  other  for  Breach  of 
Matrimonial  Obligations.  —  As  no  legal  process  can  safely  be 
enforced  to  compel  husband  and  wife  to  live  together,  against 
the  will  of  either,  so  the  peace  of  society  forbids  that  they 
should  sue  one  another  in  damages  for  breach  of  the  marital 
obligations.  Here  again  is  marriage  sui  generis,  and  not  like 
other  contracts.     But  the  failure  of  the  one  to  perform  recog- 

1  Kelly  v.  Kelly,  L.  R.  2  P.  &  D.  31 ;         4  See  post,   Parent   &   Child,    c.   3, 

1  Bishop,  §  758.  where    the    subject    is    considered    at 

2  1  Bl.  Com.  453.  length,   as   more    appropriate   to    that 
8  2  &  3  Vict.  c.  54 ;  Warde  v.  Warde,     branch  of  the  family  law. 

2  Ph.  786. 

79 


§  48  THE    DOMESTIC    RELATIONS.  [PART   II. 

nized  duties  may  sometimes  absolve  the  other  from  certain 
corresponding  obligations.  Thus,  if  the  wife  leaves  her  home 
without  justifiable  cause,  the  husband  may  refuse  to  support 
her.1  If  the  husband  is  cruel,  or  makes  his  home  unfit  for  a 
chaste  woman  to  live  in  (which  is  a  species  of  cruelty),  the  wife 
may  leave  and  compel  him  to  support  her  elsewhere.2  This  is 
well-recognized  law.  In  general,  however,  such  violation  ot 
marital  obligations  is  effectually  punishable,  not  by  enforcing 
them,  as  in  the  old  English  suit  for  restitution  of  conjugal  rights 
which  is  not  recognized  in  the  United  States,  but  by  putting  an 
end  to  the  relation  altogether;3  a  confession  that  government 
through  the  courts  proves  unequal  to  the  task  of  protecting 
the  marriage  union.4  And  it  is  in  the  modern  proceedings  for 
divorce  that  we  now  find  the  subject  of  marital  obligations  most 
frequently  discussed,  with,  however,  a  bias  towards  the  con- 
struction of  the  divorce  statutes  themselves. 

Husband  and  wife  may  be  indicted  for  assault  and  battery 
upon  each  other.5  This  is  a  means  of  redress  not  unfrequently 
sought  against  cruel  husbands,  especially  among  those  of  low 
surroundings,  where  drunkenness  is  common,  and  religion  treats 
divorce  for  cruelty  with  disfavor  ;  and  a  husband  who  beats  his 
wife  inexcusably  may  be  convicted  of  this  offence.6  So,  too, 
the  offending  spouse  may  be  bound  to  keep  the  peace.  For  un- 
reasonable and  improper  checks  upon  her  liberties,  the  wife 
may  have  relief  on  habeas  corpus.     But  the  writ  is  not  available 

1  2  Kent,  Com.  147  ;  Manby  v.  Scott,  State  v.  Mabrey,  64  N.  C.  592;  Whipp 
1  Mod.  124;  1  Bl.  Com.  443.  v.  State,  34   Ohio   St.   87;    Tucker  v. 

2  Houliston  v.   Smyth,  3  Bing.  127.     State,  71  Ala.  342. 

And  seec.  3,  as  to  wife's  necessaries.  B  In  North  Carolina,  where  the  right 

8  See  1   Bishop,  Mar.  &  l)iv.  §  771  ;  to    moderately    chastise    has    been    so 

1    Fraser,    Dom.   ReL  452;    Adams  v.  reluctantly  yielded,  it  is  admitted  that 

Adams,    100     Mass.     365;    Briggs    v.  if    the   circumstances    involve    malice, 

Brig<rs.  20  Mich.  34;  Schouler,  Hus.  &  cruelty,  or  the  infliction  of  permanent 

Wife,  §§  72-77  injury  upon  the  wife,  the  husband  may 

4  It  is  worth  considering  whether  properly  be  convicted  of  assault  and 
more  effort  might  not  be  made  to  bus-  battery.  State  v.  Oliver,  70  N.  C.  60. 
tain  conjugal  rights  by  judicial  inter-  But  in  this  State  trivial  complaints  are 
vention  in  the  direction  of  reconciling  not  favored.  And  a  sentence  to  im- 
spousea  to  one  another,  requiring  the  prisonment  for  five  years  in  an  aggra- 
offending  party  to  give  bonds,  or  the  vated  case  was  lately  considered  a 
lik'  "cruel      and      unusual"     punishment. 

5  Bradley   v.    State,    Walker,    150;  State   v.   Driver,   78  N.   C.   423. 

80 


CHAP.  II.]        PERSON  OF  THE  SPOUSE.  §  50 

for  the  husband  to  secure  the  person  of  his  wife,  voluntarily 
absenting  herself  from  his  house.1 

§  49.  The  Spouse  as  a  Criminal ;  Private  "Wrongs  and  Public 
Wrongs  compared.  —  We  shall  find  the  doctrine  of  coverture 
affecting  the  liability  of  a  married  woman  for  her  fraud  or 
injury,  so  that  her  husband  must  respond  to  others  in  damages 
for  her.2  But  here  the  private  wrong  and  the  public  wrong 
stand  contrasted.  The  immunity  of  the  wife  does  not  extend 
to  criminal  prosecutions.  For,  as  Blackstone  observes,  the 
union  is  only  a  civil  union.3  Or,  to  come  more  to  the  point, 
it  would  be  cruel  and  unjust  to  punish  one  person  for  the 
crime  of  another,  or  even  to  compel  the  two  to  bear  the  penalty 
together;  while  it  would  be  impolitic,  as  well  as  unjust,  to 
allow  any  relation  which  human  beings,  morally  responsible, 
might  sustain  with  one  another,  to  absolve  either  from  public 
accountability.  Here  coverture  as  a  theory  contradicts  itself 
by  leaving  the  wife  answerable  alone  for  her  crimes,  just  as 
a  siuole  woman.  The  utmost  the  law  can  do  is  to  furnish  a 
presumption  of  innocence  in  her  favor  in  cases  where  the  co- 
ercion of  her  husband  may  be  reasonably  inferred. 

§  50.  Presumption  of  Wife's  Coercion,  how  far  carried  —  This 
indulgence  of  presumed  innocence,  it  is  said,  is  carried  so  far  as 
to  excuse  the  wife  from  punishment  for  theft,  burglary,  or  other 
civil  offences  "against  the  laws  of  society,"  when  committed  in 
the  presence  or  by  the  command  of  her  husband  ;  but  not  so 
as  to  exculpate  the  wife  for  moral  offences.  For  mala  prohibita 
she  is  not  punished ;  for  mala  in  se  she  is.  Such  a  distinction 
is  variable  and  somewhat  shadowy ;  the  line  seems  to  be  drawn 
more  wisely,  if  at  all,  between  such  heinous  crimes  as  murder 
and  manslaughter,  and  the  lighter  offences.4  And  the  better 
opinion  is,  decidedly,  that  at  the  most  coercion  is  only  a  pre- 
sumption, which  may  be  rebutted  by  evidence  to  the  contrary.5 

i  Ex  parte  Sandiland.  12  E.  L.  &  Eq.  2  See  post,  c.  4. 

463.     See  Adams  v.  Adams,  100  Mass.  8  1  Bl.  Com.  443. 

365.   as  to  the  old  writ  of  supplicavit  *  2  Kent,  Com.  11th  ed.  150;  4  Bl. 

formerly  issued   for  protection  of   the  Com.  28,  29,  and  Christian's  notes  ;  1 

wife    against    her    husband;    Reg.    v.  Hawk.   P.  C.  b.   1,  ch.  1,  §  9 ;  1   Russ. 

Jackson  (1891),  1  Q.  B.  671  ;  81  Mich.  Crimes,  18-24. 

89.  5  2  Kent,  Com.  11th  ed.  150;  State 

6  81 


§  50  THE   DOMESTIC   Ku^aTIONS.  [PART   II. 

The  presumption,  therefore,  that  in  the  less  heinous  crimes 
committed  by  the  wife  in  her  husband's  presence,  the  wife  acts 
under  the  husband's  coercion,  may  in  any  case  be  repelled  by 
suitable  proof;  and  when  it  is,  the  wife,  as  one  acting  sui  juris, 
must  be  held  responsible  for  the  wrong  done  by  her  in  her 
husband's  company.  This  is  the  true  rule.  Husband  and  wife 
may,  therefore,  both  be  indicted  and  convicted  of  any  crime 
where  it  appears  that  both  were  guilty  of  the  offence  and  the 
wife  was  not  coerced.1  In  most  of  the  latest  cases  where  the 
wife  is  indicted,  the  presumption  of  coercion  has  been  regarded 
as  something  to  be  easily  rebutted,  especially  in  that  numerous 
class  of  cases  which  relate  to  the  illegal  sale  of  liquors,  a  busi- 
ness in  which  married  women  frequently  engage  understand- 
ingly.2  And  where  the  crime  is  heinous,  and  the  presence  and 
command  of  the  husband  do  not  concur,  a  jury  may  readily  find 
the  wife  independently  guilty.3  Woman  shrinks  naturally  from 
committing  the  bolder  crimes,  yet  a  woman  may  be  principal 
in  a  murder.4  A  wife  who  committed  larceny  by  her  husband's 
bare  command,  when  he  was  not  present,  has  been  held  liable 
therefor ;  and  our  present  tendency  is  to  refuse  exculpation  to 
the  wife  unless  the  husband  commanded  and  was  near  enough 
besides  to  exert  directly  his  marital  influence  upon  her  partici- 
pation in  accomplishing  the  particular  crime.5 

v.  Parkerson,  1   Strobh.   169;    1   Russ.  tim  and  told  him  to  keep  still,  wliile  her 

Crimes,  22 ;  2  Lew.  C.  C  229  ;  Uhl  v.  husband   and   a  confederate   rifled    his 

Commonwealth,  6  Gratt.  706;  Wagener  pockets,  a  verdict  of  independent  guilt 

r.    Bill,   10    I>;trb.  .321;   cases  infra;    1  against  her  was  sustained. 
Greenl.  Ev.  loth  ed.  §  28.  4  A  wife  who  acts  as  principal  with 

1  Goldstein  v.  People,  82  N.  Y.  231  ;  her  husband  in  a  murder  may  be  held 

Muivey  w.  State,  43   Ala.  316;  State  v.  liable   accordingly.     Bibb  v.   State,   94 

Potter,  42    Vt.  495;  People  v.  Wright,  Ala.   31.     As  to  keeping  a  disorderly 

38  Mich.   744  ;  State  v.  Camp,  41  N.  J.  house,  see  133  Mass.  381.    Astoforgery, 

.L.  306  ;  42  Fed.  317.  see  97  N.  Y.  126. 

-  See  State  v.  Cleaves,  59   Me.  298;  5  Seiler   v.    People,    77   N.  Y.   411; 

Commonwealth  v,  Tryon,  99  Mass.  442;  State  v.   Camp,  41   N.  J.  L.  306;  State 

Commonwealth  v.  Pratt,  126  Mass.  462.  v.  Potter,  42  Vt.  495;  Commonwealth 

'■'■  Presumption  of  coercion  rebutted  v.  Lewis,  1  Met.  151  ;  Commonwealth 
[n  a  murder  case,  where  a  wife  had  con-  v.  Feeney,  12  Allen,  560;  Common- 
tpired  with  her  husband  to  commit  wealth  v.  Munsey,  112  Mass.  287;  Ed- 
robbery.  .Miller  v.  State,  25  Wis.  384.  wards  v.  State,  27  Ark.  494.  See 
In  People  v.  Wright,  aw  Mich.  744,  further,  Schouler  Hus.  &  Wife,  §§  76- 
where  a  wife,  participating  with  her  78;  13  R.  I.  535,  537  ;  133  Mass.  580. 
htuband  in  a  robbery,  throttled  the  vie- 

82 


CHAP.  II.]  PERSON    OF    THE    SPOUSE.  §  52 

§  51.  Offences  against  the  Property  of  One  Another.  —  Pub- 
lic policy  forbids  that  either  spouse  should  molest  the  person 
of  the  other  with  impunity.1  But  as  to  the  property  of  a 
spouse  while  cohabitation  lasts  our  law  pursues  a  distinction. 
Accordingly,  it  is  well  established  that  the  wife  cannot  be 
found  guilty  of  stealing  the  goods  of  her  husband,  inasmuch  as 
she  resides  with  him  and  has  possession  of  the  goods  by  virtue 
of  the  marriage  relation.2  And  as  to  the  husband,  whose  legal 
possession  and  control  of  his  wife's  property  during  wedlock  is 
far  stronger,  it  is  held  that,  not  even  upon  the  ground  that  a 
certain  building  was  his  wife's  separate  property,  can  he  be 
convicted  of  arson  for  setting  it  on  fire.3  But  where  a  third 
person,  though  at  the  wife's  instigation,  forcibly  removes  from 
the  house  goods  belonging  to  the  husband,  the  latter  may  sue 
him  for  the  tort.4 

§  52.  Mutual  Disability  to  Contract,  Sue.  &c.  —  Husband  and 
wife  cannot  make  gifts  or  sales  to  one  another  during  coverture, 
though  the  same  parties  might  have  done  so  before  and  in  con- 
templation of  marriage.  Nor  can  they  in  other  respects  con- 
tract or  enter  into  covenants  with  one  another.  Nor  can  one 
sue  the  other.5  But,  as  we  shall  hereafter  see,  equity  and 
modern  legislation  introduce  a  different  principle.  This  disa- 
bility of  the  spouses  to  sue  one  another  is  not  merely  the  tech- 
nical one  that,  under  the  old  procedure,  husband  and  wife  must 
join,  but  is  founded  on  the  principle  that  husband  and  wife  are 
one.6  There  is  sound  policy,  moreover,  in  discouraging  the  pair 
from  making  of  their  matrimonial  bickerings  a  cause  of  action 

1  See,  e,  g.,  as  to  remedies  for  assault  4  Burns  v.  Kirkpatriek,  91  Mich. 
and  battery  supra,  §  48.  Otherwise  as  364,  where  the  offender  was  the  wife's 
to   a   spouse's   libel,   slander,   etc.      16     brother. 

Q.  B.  D.  772.  5  Lord    Hardwicke,    in    Lannoy    v. 

2  Queen  v.  Kenny,  2  Q.  B.  D.  307  ;  Duchess  of  Athol,  2  Atk.  448 ;  1  Bl. 
Lamphier  v.  State,  70  Ind.  317.  And  Com.  442;  2  Kent,  Com.  129.  The  mar- 
see  86  Ga.  773.  ried  women's  acts  in  this  country  have 

3  Snyder  v.  People,  26  Mich.  106.  changed  the  common  law  greatly  as  to 
Modern  American  statutes  frequently  the  mutual  right  of  suit.  And  see,  as 
change  this  last  rule.  See  Schouler,  to  modern  rules,  c.  14,  post,  Transac- 
Hns.  &  Wife,  Appendix.  And  see  lb.  tions  between  Husband  and  Wife. 
§§78,  79.  In  Beasley  v.  State  (1894),  6  Blackburn,  J.,  in  Phillips  v.  Bar- 
Ind.,  a   husband   was    held    criminally  net,  1  Q.  B.  D.  436. 

answerable   for   larceny   of    his   wife's 
property. 

83 


§  53  THE   DOMESTIC   RELATIONS.  [PART   II. 

for  damages  against  one  another.  However  it  may  be  at  this 
day,  therefore,  as  to  actions  of  contract,  or  proceedings  in  equity, 
arising  out  of  their  distinct  property  relations,  the  wife  has  no 
cause  of  action  in  damages  against  her  husband  for  a  pure  tort 
committed  upon  her  person  during  the  marriage  relation,  such 
as  assault  or  false  imprisonment.  And  as  the  objection  to  such 
actions  is  not  merely  one  of  procedure,  the  fact  that  she  has 
since  procured  a  divorce  will  not  enable  her  to  bring  such  a 
suit.1 

§  53.  Mutual  Disqualification  as  Witnesses.  —  One  of  the 
most  important  of  the  mutual  disabilities  of  the  marriage  state 
is  the  disqualification  of  husband  and  wife  to  testify  as  wit- 
nesses in  the  courts  for  or  against  one  another.  Blackstone 
places  this  prohibition  on  a  technical  ground,  —  unity  of  the 
person ;  for,  he  says,  if  they  testify  in  behalf  of  one  another, 
they  contradict  the  maxim,  " 'Nemo propria  causa  testis  esse  debet;  '' 
and,  if  against  one  another,  that  other  maxim,  "  Nemo  tenetur  se 
ipsum  accusare."2  He  also  suggests  interest  as  another  ground 
for  the  rule ;  and  this  doubtless  is  a  good  one.  But  a  more 
solid  reason  than  either  is  that  of  public  policy.  "  The  happi- 
ness of  the  married  state,"  says  Mr.  Greenleaf,  "  requires  that 
there  should  be  the  most  unlimited  confidence  between  husband 
and  wife  ;  and  this  confidence  the  law  secures,  by  providing  that 
it  shall  be  kept  forever  inviolable  ;  that  nothing  shall  be  ex- 
tracted from  the  bosom  of  the  wife  which  was  confided  there  by 
the  husband."  3 

So  unyielding  is  this  rule  that  mutual  consent  will  not 
authorize  the  breach  of  it.4  Whether  the  suit  be  civil  or 
criminal,  in  law  or  at  equity,  it  matters  not.  Form  yields  to 
substance  in  procedure,  for  the  sake  of  excluding  such  testi- 

1   Phillips  v.  Harriet,  1  Q.  B.  D.  436  ;  lee  v.  McLoon,  16  Gray,  488,  prefers  to 

Abbott  v.  Abbott,  67  Me.  304.     A  wife  consider  that  interest,  more  than  policy, 

cannot   prosecute   her   husband  for  an  determined   the  question    at    common 

all  npoD  the  person  of  their  dangh-  law. 

ter.      People    v.    Westhrook,    94    Midi.  *   1    (Jroenl.    Evid.    §  340,    and  cases 

629.  cited;    Lord   Hardwicke,   in   Parker  v. 

-  I  Bl.  Com    143.  Dixie,  Cas.  temp.  Hardw.264;  Davis?;. 

:i  I  Greenl.  Evid.  §  2.r)4.    See  also  2  Dinwoody,  4  T.  R.  679,  per  Lord  Keu- 

Kent,  Com.  itk-iso,  t,,  ti,(.  same  effect,  yon  ;  contra,  Pedley  v.  Wellesley,  3  Car. 

apparently  Chapman,  L,  in   Peas-  &  P.  558;  2  Kent,  Com.  179. 
84 


CHAP.  II.]        PERSON  OF  THE  SPOUSE.  §  53 

mony.  And  after  coverture  has  terminated  by  death  or  di- 
vorce, still  the  prohibition  lasts  as  to  all  which  took  place 
while  the  relation  existed.1  The  disability  of  the  husband  is 
in  this  respect  as  great  as  that  of  the  wife.2  The  rule  applies 
alike  to  evidence  of  declarations  made  by  husband,  and  wife 
for  or  against  one  another,  and  to  their  testimony  in  person.3 
Nor  is  a  wife  a  competent  attesting  witness  to  a  will  which 
contains  a  devise  to  her  husband  ; 4  nor  one  claiming,  as  widow, 
the  right  to  administer,  competent  to  establish  her  marriage.5  Nor 
are  the  spouses  competent  witnesses  for  or  against  one  another 
in  a  suit  for  divorce  on  the  ground  of  adultery,  nor  in  proceed- 
ings for  bigamy  against  one  of  them.6  And  it  is  said  that  the 
law  guards  the  marital  confidence  of  silence  as  well  as  that  of 
communication.7 

This  rule  of  exclusion  applies  only  to  persons  occupying  the 
bona  fide  relation  of  husband  and  wife;  not,  of  course,  to  a  mis- 
tress, or  parties  in  immoral  cohabitation.  But  at  the  same 
time  the  courts  lean  kindly  towards  'prima  facie  marriages,  and 
make  no  rigid  investigation.8  The  policy  of  the  rule  is  evi- 
dently to  treat  as  privileged  communications   all   that   passes 

1  Monroe  v.  Twistleton,  cited  in  4  Sullivan  v.  Sullivan,  106  Mass.  474. 
Averson  v.  Lord  Kinnaird,  6  East,  192;  The  Massachusetts  rule  is  contrary  to 
Doker  v.  Hasler,  Ry.  &  M.  198;  Steiu  that  of  New  York  and  Maine.  See  au- 
•;.   Bowman,    13    Pet.    223 ;    1    Greenl.  thorities  cited  in  this  case. 

Evid.  §  337.     See    also  Terry   v.    Bel-  5  Redgrave  v.  Redgrave,  38  Md.  93. 

cher,   1   Bailey,  568 ;    State  v.  Jolly,  3  6  Marsh  v.  Marsh,  29  N.  J.  Eq.  396  ; 

Dev.  &  Bat.  110 ;  Crose  v.  Rutledge,  81  Finn  v.  Finn,  19  N.  Y.  Supr.  339  ;  Peo- 

111.266;  Wood  v.  Shurtleff,  46  Vt.  525  ;  pie   v.   Houghton,   41   N.  Y.  Supr.  501. 

89  N.   C.  559;  78  Ala.  425  ;  Maynard  But  see  State  v.  Bennett,  31  Iowa,  24. 
v.  Vinton,  59   Mich.   139;  1    Barb"  392.  1  Goodrum  v.  State,  60  Ga.  509. 

But  see  Dickerman   v.  Graves,  6  Cush.  8  1    Greenl.    Evid.  §  339,  and  cases 

308.  cited  ;  2   Stark   Evid.  400 ;  Bull.  N.  P. 

2  See  cases  cited  in  1  Greenl.  Evid.  287  ;  Campbell  v.  Twemlow,  1  Price, 
§  334.  And  see  Turner  v.  Cook,  36  81.  So  as  to  the  wife  of  a  freedman. 
Ind.  129  ;  Richards  v.  Burden,  31  Iowa,  Hampton  v.  State,  45  Ala.  82.  The  rule 
305;  Rea  v.  Tucker,  51  111.  110;  Sue-  of  exclusion  does  not  extend  to  a  mis- 
cession  of  Wade,  21  La.  Ann.  343.  The  tress  or  the  husband  of  one's  paramour, 
wife  is  not  competent  to  prove  an  alibi  Dennis  v.  Crittenden,  42  N.  Y.  542  ; 
for  her  husband  in  a  criminal  prosecu-  Mann  v.  State,  44  Tex.  642  ;  Hill  v. 
tion.     Miller  ».  State,  45  Ala.  24.  State,    41    Ga.    484;    Rickerstriker    r. 

3  1  Greenl.  Evid.  §341;  6  T.  R.  State,  31  Ark.  207 ;  State  v.  Brown,  28 
680;  7  T.  R.  112;  Kelly  v.  Small,  2  La.  Ann.  279.  See  further,  Schouler, 
Esp.  716  :  Brown  v.  Wood,   121  Mass.  Hus.  &  Wife,  §  83. 

137  ;  Schouler,  Hus.  &  Wife,  §  83. 

85 


§  53  THE  DOMESTIC   RELATIONS.  [PART   IL 

between  persons  supposing  themselves  lawfully  married,  and 
at  all  events  not  to  prejudice  the  rights  of  the  innocent  party 
to  an  invalid  marriage ;  but  the  rule  has  not  always  been  car- 
ried to  such  an  extent.  Some  exceptions  exist  to  the  rule, 
founded  mainly  on  considerations  of  public  policy.1 

There  have  been  important  changes  introduced  into  the 
law  of  evidence  in  some  parts  of  this  country  by  statute ;  such 
as  permitting  interested  persons  to  testify  in  their  own  suits. 
Where  the.  old  doctrine  prevails,  the  exclusion  of  the  hus- 
band, by  reason  of  direct  interest,  operates  to  exclude  his 
wife  likewise.2  So  the  husband  cannot  be  a  witness  in  a  con- 
troversy respecting  his  wife's  separate  estate,  though  in  respect 
to  other  parties  concerned  he  might  be  competent ; 3  and  this, 
too,  is  changed  by  legislation.  The  English  Evidence  Act  of 
1853,  16  &  17  Vict.  c.  83  (which  has  been  substantially  enacted 
in  most  parts  of  this  country)  renders  husbands  and  their 
wives  competent  and  compellable  witnesses  for  each  other,  ex- 
cept in  criminal  cases  and  in  cases  of  adultery;  but  neither 
shall  be  compelled  to  disclose  communications  made  during 
marriage.4  On  the  whole,  the  prevailing  tendency  of  late  years 
in  both  England  and  America  has  been  to  regard  domestic  con- 


1  2  Russ.  on  Crimes,  605,  606  ;  1  Bl.  As  where  the  husband  dealt  with  the 
Com.  443;  1  Greenl.  Evid.  §343,  and  wife's  separate  property  as  her  agent, 
cases  cited  in  note;  Schouler,  Has.  &  Chesley  v.  Chesley,  54  Mo.  347;  Menk 
Wife,  §  84,  and  cases  cited.  One  spouse  v.  Steinfort,  39  Wis.  370.  But  cf.  Robi- 
may  testify  as  to  a  criminal  assault  by  son  v.  Robison,  44  Ala.  227.  Statutes 
the  other.  63  Md.  123;  16  Q.  B.  D.  allow  of  reciprocal  testimony  on  mat- 
772;  42  La.  Ann.  927;  137  Penn.  St.  ters  of  their  mutual  property  concerns, 
255 ;  94  Ala  53.  or  where  one  transacts  as  the  agent  of 

2  1   Greenl.   Evid.   §  341  ;    Ex  parte  the  other.     55  Mich.  362;  84  Mo.  442. 
Jones,   1   P.   Wins.    610;    and  cf.   Stat.  *  See  Ed.  note  to  10th  ed.  2  Kent, 
6  ( reo.  IV.  c.  16,  §  37.  Com.  181  ;  Stapleton  v.  Croft,  10  E.  L. 

3  1  Burr.  424,  per  Lord  Mansfield  ;  &  Eq.  455  ;  Barbat  v.  Allen,  lb.  596  ; 
12  Vin.  Abr.  Evidence  B.  And  see  Alcock  v.  Alcock,  12  lb.  354;  State  v. 
note  to  1  Greenl.  Evid.  §  341,  with  au-  Wilson,  30  N.  J.  77;  Farrell  v.  Led- 
thorities  cited.  In  various  States  a  well,  21  Wis.  182;  Peaslee  v.  McLoon, 
spouse,  tinder  statute,  may  be  a  COmpe-  16  Gray,  488;  Metier  v.  Metier,  3  C.  E. 
tent  witness  to  a  greater  or  less  extent  Green,  270;  Porter  v.  Dunn,  131  N.  Y. 
with  reference  to  a  wife's  separate  prop-  314.  See  Schouler,  Hus.  &  Wife,  §  85 
erty.  Musser  v.  Gardner,  66  Penn.  St.  and  «.,  where  the  modern  cases  are  col- 
242;  Northern  Line  Packet  Co.  v.  lated.  And  see  local  statute  in  anj 
Shearer,  61  111.203;  Porter  >•.  Allen,  54  case. 

Qa,  823  j   Wing  v.  Goodman,  75  111.  159. 

86 


CHAP.  II.] 


PERSON  OF  THE  SPOUSE. 


§53 


fidence  or  the  Lias  of  a  spouse  as  of  less  consequence  compared 
with  the  public  convenience  of  extending  the  means  of  ascer- 
taining the  truth  in  all  causes  ;  such  facilities  being  increased, 
it  is  believed,  by  hearing  whatever  each  one  has  to  say,  and  then 
making  due  allowance  for  circumstauces  affecting  each  one's 
credibility.  By  the  modern  enlargement  of  the  wife's  separate 
contract  and  property  relations,  moreover,  the  spouses  are  pre- 
sented, not  so  constantly  as  partakers  of  one  another's  confi- 
dence, but  rather  as  persons  having  adverse  interests  to  maintain, 
or  else  as  principal  and  agent.1  Yet  there  is  still  reluctance 
felt  to  disturbing  by  legislation  the  harmony  of  the  marriage 
state  so  far  as  to  expose  its  secret   confidences.2      But  as  to 


1  A  statute  providing  for  the  admis- 
sion of  interested  parties  as  witnesses 
does  not  per  se  remove  the  disqualifi- 
cation of  husband  and  wife.  Lucas  v. 
Brooks,  18  Wall.  436;  Gibson  v.  Com- 
monwealth, 87  Penn.  St.  253 ;  Schultz 
v.  State,  32  Ohio  St.  276  ;  Gee  v.  Scott, 
48  Tex.  510 

If  one  marital  party  testifies  for  or 
against  the  other,  under  statute,  cross- 
examination  must  be  permitted,  even  if 
it  compels  the  testimony  to  the  oppo- 
site direction.  Ballentine  v.  White,  77 
Penn.  St.  20;  Steinburg  v.  Meauy,  53 
Cal.  425. 

A  wife  cannot  testify  against  her 
husband  upou  his  trial  for  theft  of  her 
property.  Overton  v.  State,  43  Tex. 
616. 

Concerning  testimony  as  to  conver- 
sations held  by  married  parties  when 
they  were  alone,  the  rule  of  the  com- 
mon law,  encouraging  their  confidence, 
is  presumed  to  be  unchanged  unless 
the  statute  is  positive  to  that  effect. 
Raynes  v.  Bennett,  114  Mass.  424; 
Westerman  v.  Westerman,  25  Ohio  St. 
500;  Brown  v.  Wood,  121  Mass.  137; 
Wood  v.  Chetwood,  27  N.  J.  Eq.  311  ; 
Stanford  v.  Murphy,  63  Ga.  410;  32  W. 
Va.  14;  77  Iowa,  263. 

Where  both  husband  and  wife  are  in- 
terested in  the  result  of  a  suit,  neither 
is  a  competent  witness.  82  Va.  484 ; 
De  Farges  v.  Ryland,  87  Va.  404.     Ad- 


missions of  one  spouse  adversely  inter- 
ested ought  not  to  affect  the  rigbt  of 
the  other.     Fitzgerald  v.   Brennan,    57 
Conn.  511.     On  account  of  the  identity 
of  the  spouses,  where  one  is  incompe- 
tent to  testify,  the  other  is   also  incom- 
petent.    Bitner  t\  Boone,  128  Penn.  St. 
567.     And   see  Adams  v.  State,  28  Fla. 
511.      The    Michigan   statute  provides 
that   a  husband  shall  not  be  examined 
for  or  against  his  wife  except,  inter  alia, 
where  her  interest  is  opposed  to  his  in 
a  question  of  property  derived  through 
him.     Blanchard  v.  Moors,  85  Mich.  380. 
-  "  Communications     between     hus- 
band and  wife  are  not  excluded  on  the 
ground  of  their  common  interest,  or  for 
the  protection  of  those  against  whom 
they  may   testify,    but   because   public 
policy  requires  that  they  shall  not  be  al- 
lowed to  betray  the  trust  and  confidence 
which  are  essential  to  the  happiness  of 
the  married  state.     The  reason  for  the 
exclusion  ceases  when  the  husband  and 
wife   conclusively  show,  by  making  the 
communication    in  the  known  presence 
of  a  third   person    competent   to    be  a 
witness,  that   it  is  not  of  a  confidential 
nature,  and  that  its    disclosure   cannot 
violate  any  trust  or    confidence."     Up- 
son, J.,  in  Sessions  v.   Trevitt,  39  Ohio 
St.  259,  268.    And  see  Robb's  Appeal, 
98  Penn.  St.  501  ;  43  Ark.  307.      Under 
a  New  York  statute  of  1876,  one  spouse 
may  be  examined  in  a  criminal    trial 

87 


§  54  THE   DOMESTIC   RELATIONS.  [PART   II. 

matters  spoken  not  confidentially  but  coming  by  means  equally 
accessible  to  third  persons  it  may  be  different.1  Many  questions 
arise  at  the  present  day  under  various  local  statutes  which  each 
practitioner  should  consult  upon  occasion. 


CHAPTER   III. 

EFFECT   OF   COVERTURE   UPON   WIFE'S   DEBTS   AND   CONTRACTS. 

§  54.  General  Inequalities  of  Coverture  at  Common  Law.  — 
The  property  rights  of  married  women  are  restrained  at  the 
common  law.  The  husband  yields  to  his  wife  no  participation 
whatever  in  his  own  property,  whether  acquired  before  or  dur- 
ing the  continuance  of  the  marriage  relation,  except  a  certain 
right  of  inheritance  to  his  goods  and  chattels,  of  which  he  can 
generally  deprive  her  by  his  will  and  testament,  and  also  dower 
in  his  real  estate,  which  is  her  only  substantial  privilege.  In 
return  for  this,  she  parts  with  all  control,  for  the  time  being, 
over  her  own  property,  whensoever  and  howsoever  obtained,  by 
gift,  grant,  purchase,  devise,  or  inheritance,  gives  him  outright 
her  personal  property  in  possession,  and  allows  him  to  appro- 
priate to  himself  those  outstanding  rights  which  are  known  as 
her  choses  in  action,  or  all  the  rest  of  her  personal  property  ;  parts 
with  the  usufruct  of  her  real  estate,  creating  likewise  a  possible 
encumbrance  upon  it  in  the  shape  of  tenancy  by  the  curtesy ; 
and  finally  takes,  if  she  survives  him,  only  her  real  estate,  such 
of  her  personal  property  as  remains  undisposed  of  and  unappro- 
priated, with  a  few  articles  of  wearing  apparel  and  trinkets 
called  j»inij)]nrnalia.  She  cannot  restrain  his  rights  by  will. 
She  is  not  allowed  to  administer  on  his  personal  estate  in 
preference  to  his  own   kindred,  though   the  whole  of  it  were 

as  a  witness  on  behalf  of  the  other,  hut  tent   but    not    compellable   testimony, 

cannot  be  compelled  to  testify;  and  if  Stickney  v.  Stickney,  131  U.  S.  277;  44 

one  is  nol  called  by  the  defendant,  that  Minn.  159. 

fact  ma}  be  commented  on  to  the  jury,  x  Bigelow  i».  Sickles,  75  Wis.  427, 
02  N.  Y. 554,     Sec  further,  us  tocompe- 


CHAP.  III.]  WIFE'S   DEBTS   AND   CONTRACTS.  §  54 

once  hers ;  while  he  can  administer  on  her  estate  for  his  own 
benefit,  and  exclude  her  kindred  altogether,  even  from  partici- 
pation in  the  assets.  Thus  unequal  are  the  property  rights 
of  husband  and  wife  by  the  strict  rule  of  coverture.  We 
speak  not  here  of  recent  statutory  benefits  conferred  upon 
the  wife  ;  nor  of  that  relief  which  equity  affords  in  permitting 
property  to  be  held  to  the  wife's  separate  use,  and  giving  her 
a  provision  from  her  clwses  in  action,  when  the  husband  seeks 
its  aid  in  appropriating  them  to  his  own  use;  but  of  what 
is  to  be  properly  termed  the  common  law  of  husband  and 
wife.1 

Some  recompense  is  afforded  to  the  wife  for  the  loss  of  her 
fortune,  in  the  rule  that  her  husband  shall  pay  her  debts  con- 
tracted while  a,  feme  sole;  that  is,  unmarried.  And  while  cover- 
ture lasts  he  is  liable  for  all  just  debts  incurred  in  her  support. 
He  has  even  been  held  guilty  of  murder  in  the  second  degree 
when  he  has  suffered  her  to  die  for  want  of  proper  supplies.2 
The  wife  cannot  make  a  contract  so  as  to  bind  herself ;  but  in 
this,  and  other  cases  of  express  or  implied  authority,  she  can 
bind  her  husband,  and  so  secure  a  maintenance.  That  which 
cannot  be  enforced  by  the  wife  as  a  matter  of  obligation  is 
often  attained  at  the  common  law  in  some  indirect  way.3  Nor 
can  the  wife  sue  and  be  sued  in  her  own  right. 

So,  too,  the  husband  is  liable  civilly  for  the  frauds  and  in- 
juries of  the  wife,  committed  during  coverture ;  being  sued 
either  alone  or  jointly  with  her,  in  accordance  with  the  legal 
presumption  of  coercion  in  such  cases.  And  he  must  respond 
in  damages,  whether  she  brought  him  a  fortune  by  marriage 
or  not.  But  as  we  have  seen,  this  rule  does  not  apply  to 
crimes,  except  that  the  law  shows  the  wife  a  certain  indul- 
gence where  a  similar  presumption  can  be  alleged  on  her 
behalf.  On  the  other  hand,  the  husband  takes  the  benefit  of 
such  injuries  as  she  may  suffer,  by  suing  with  her  and  appro- 
priating the  compensation  by  way  of  damages  to  himself.4 

1  See  1  Bl.  Com.  442-445,  and  notes,  8  See  1  Bl.  Com.  442 ;  2  Kent,  Com. 
by  Christian,  Hargrave,  and  others;  2     143-149. 

Kent,  Tom.  1.30-143  ;  ami  chapters  infra.  4  1  Bl.  Com.  443 ;  2  Kent,,  Com.  149, 

2  Reg.  v.  Hummer,  1  Car.  &  K.  600.     150. 

89 


§  56  THE   DOMESTIC    RELATIONS.  [PART   II. 

§  55.  Exception  where  Wife  is  treated  as  Feme  Sole. — We 
may  add  that  the  wife  is  relieved  at  the  common  law  of  the 
disabilities  of  coverture,  and  placed  upon  the  footing  of  a  feme, 
sole,  with  the  privilege  to  contract,  sue,  and  be  sued,  on  her  own 
behalf,  in  one  instance,  namely,  where  her  husband  has  abjured 
the  realm  or  is  banished  ;  for  he  is  then  said  to  be  dead  at  the 
law.1  And  the  necessity  of  the  case  furnishes  the  strongest 
argument  for  this  exception.  Another  exception  early  pre- 
vailed in  certain  parts  of  England  by  local  custom,  —  as  that 
of  London,  —  where  the  wife  might  carry  on  a  trade,  and  sue 
and  be  sued  in  reference  thereto  as  though  single.2 

§  56.  Husband's  Liability  for  Wife's  Antenuptial  Debts.  — 
One  of  the  immediate  effects  of  marriage  at  the  common  law  is 
that  the  husband  at  once  becomes  bound  to  pay  all  outstand- 
ing debts  of  his  wife,  —  her  debts  dum  sola,  as  they  are  called,  — 
of  whatever  amount.  This  is  a  sort  of  recompense  he  makes 
for  taking  her  property  into  his  hands.  But  whether  she 
brings  him  a  fortune  or  not,  his  liability  is  not  affected,  and  his 
whole  property  is  answerable  for  them.  She  may  owe  large 
sums  at  the  time  of  marriage  and  have  nothing  to  offset  them. 
She  may  have  studiously  concealed  the  existence  of  the  debts 
from  her  affianced  husband.  But  none  of  these  considerations 
can  avail  to  shield  him.  When  married,  she  is  married  with 
her  debts  as  well  as  her  fortunes.  As  Blackstone  observes,  her 
husband  must  be  considered  to  have  "adopted  her  and  her 
circumstances  together."  3  This  rule  is,  moreover,  applied  with- 
out discrimination  as  to  individuals.  An  infant  who  marries 
is  bound  equally  with  an  adult  husband.4  A  second  husband 
is  liable  for  the  debts  of  his  wife  outstanding  at  the  close  of  her 
widowhood,  whether  contracted  prior  to  the  first  marriage,  or 
while   living    separate  from    her   first   husband,   and    upon    a 

1   1  151.  Com.  44.3  ;  2  Kent,  Com.  154.  to   a  great  extent,  by  modern   equity 

Bee  Separation,  post,  e.  17.  rules  and    legislation.    See   cs.    7-12, 

-1    I  Selw.  X.  I'.  298;   Ring.  Inf.  2GI,  post. 

I  o.  Litt.  .351,  !>;  23  Q.  R.  D.  320.  3  1    Rl.  Com.  443;    3  Mod.  180;    2 

'lip-    modem  practitioner   is    here  can-  Kent,    Com.    143-146;    Macq.    Hus.    & 

tioned   that  the  statement  of  the  com-  Wife,  39-41;  Heard  v.  Stamford,  3  P. 

up. n  l.iw  iii  this  chapter  is  a  statement  Wms.  409;  Cas.  temp.  Talh.  173. 
nf  doctrines  which  at  the  present  day         4  Roach   v.   Quick,    9   Wend.    238; 

are  found  to  ho  controlled  and  changed,  Rutler  v.  Rreck,  7  Met.  164. 

90 


CHAP.  III.]         WIFE'S   DEBTS    AND    CONTRACTS.  §  56 

separate  maintenance,  or  after  the  determination  of  her  first 
coverture  and  subsequent  to  the  second.1  To  charge  the  hus- 
band in  general  it  is  necessary  that  a  judgment  for  such  debts 
should  be  obtained  against  him  during  the  coverture,2  and  the 
suit  should  be  brought  against  both  husband  and  wife  while 
the  marriage  lasts.3 

On  the  other  hand,  the  husband  remains  liable  for  the  debts 
of  his  wife  dum  sola  only  so  long  as  coverture  lasts.  As  his 
liability  originated  in  the  marriage,  so  it  ceases  with  it.  Hence, 
if  the  obligation  be  not  enforced  in  the  lifetime  of  the  wife,  the 
surviving  husband  retains  her  fortune  (if  any)  in  his  hands, 
and  cannot  be  charged  further  with  her  debts  either  at  law  or 
in  equity.4  The  wife's  choses  in  action  still  unreduced  to  pos- 
session at  the  time  of  her  death  may,  however,  be  reached  by 
her  creditors  where  he  has  received  them  as  her  administrator, 
though  only  to  the  actual  amount  of  such  assets ;  so  that  this 
would  afford  them  but  partial  relief.6  Nor  can  the  husband's 
estate  after  his  death  be  made  liable  for  the  wife's  debts  con- 
tracted while  sole.6  Not  even  the  parol  promise  made  by  the 
husband  during  coverture  to  pay  his  wife's  debts  dum  sola 
will  create  an  additional  liability  for  them  on  his  part,"  His 
promise  as  a  widower  is  equally  without  consideration ;  nor 
will  equity  intervene  for  the  creditor  because  he  has  gained  a 
fortune  by  her.8  The  injustice  of  the  rule  in  certain  cases  is 
obvious.9 

On  general  principles  the  husband  is  bound  for  the  debt  of 
his  infant  wife  while  sole  just  as  much  as  though  she  were 
an  adult,  though  only  to  the  same  extent  as  she  would  have 
been  bound.  Hence,  where  the  demand  is  for  necessaries  fur- 
nished her  while  an  infant,  the  husband,  after  marriage,  be- 
comes bound  to  pay  it,  since  she  would  have  been  liable  if  she 

1  1  T.  R,  5;  7  T.  R.  348;  Prescott  409;  Cas.  temp.  Talk  173;  Morrow  v. 
v.  Fisher,  22  111.  390;  Angel  v.  Felton,  Whitesides,  10  B.  Monr.  411;  Day  v. 
8  Johns   1 49.  Messick,  1  Houst.  328. 

2  Hawthorne  i\  Beckwith,  89  Va.  786.         6  1  Camp.  189;  Curtton  v.  Moore,  2 
8  23  Q.  B.  D.  320,  per  Lindley,  L.  J.    Jones,  Eq.  204. 

4  2  Kent,   Com.  144.     See  Ch.   Ca.  7  Cole  v.  Shurtleff,  41  Vt.  311. 

295,  cited  §  59,  post.  8  23  Q.  B.  D.  320. 

6  Heard   v.    Stamford,  3  P.   Wms.         9  See  Schouler.  Hus.  &  Wife,  §  92. 

91 


§  57  THE   DOMESTIC    RELATIONS.  [PART   II. 

had  not  married.  And  the  infancy  of  the  lawful  husband  him- 
self cannot  be  pleaded  against  this  obligation.1 

If  the  wife  survives  her  husband,  she  becomes  liable  once 
more  on  her  debts  while  sole.  And  this,  too,  though  the 
means  for  extinguishing  them  may  have  already  been  squan- 
dered by  her  husband  or  placed  beyond  her  reach.2  Here  is  a 
great  hardship.  Coverture,  therefore,  seems  to  operate  here  as 
a  temporary  disability,  and  not  so  as  utterly  to  merge  the  wife's 
identity.  The  husband  becomes  liable  by  marriage,  not  as  the 
debtor,  but  as  the  husband;  the  remedy  being  suspended,  or 
rather  shifted,  during  coverture. 

§  57.  Wife's  Antenuptial  Debts;  Subject  continued. — The 
liability  of  the  husband  for  his  wife's  debts  while  sole  is  limited 
strictly  to  legal  demands ;  that  is,  to  such  as  she  was  bound  to 
pay  at  the  time  of  her  marriage.3  And  if  a  demand  would  not 
be  enforceable  against  her  remaining  sole,  neither  is  it  enforce- 
able against  her  husband.  But  the  promise  or  part-payment 
of  the  wife  cannot  take  a  debt  out  of  the  statute  of  limitations 
as  against  her  husband,  nor  can  the  promise  or  part-payment 
of  the  husband  as  against  his  wife.  Nor  can  their  admissions 
charge  one  another.4  Their  rights  in  this  respect  are  separately 
regarded. 

All  actions  for  the  wife's  debts  while  sole  must  be  brought 
against  husband  and  wife  jointly,  and  not  against  either  sepa- 
rately; and  judgment  obtained  by  disregarding  this  rule  will 
be  reversed  on  error.5  The  object  is  to  retain  the  remedy  in 
hand  so  that  execution  may  be  taken  out  against  the  proper  party 
according  to  circumstances ;  for,  if  the  husband  should  die 
pending  the  suit,  the  wife,  on  her  survivorship,  would  become 

1  Cole  v.  Seeley,  25  Vt.  220;  Ander-  Lescur,  18  Ala.  606  ;  Farrar  i\  Bessey, 

Smith,   '!3  Md.  465;   Bonney  v.  24  Vt.  89  ;  Parker  v.  Steed,  1    Lea,  206. 

Reardin,  6  Bosh,  34.     See  post,  §  411.  lint  see  Lord  Tenterden,  in  Humphreys 

-  Woodman   v.  Chapman,   1    Camp.  v.   Royce,  1   Mood.  &  Rob.  140,  as  to 

\.  r.  189,  per  Lord  Ellenborough.  admissions    of  the  wife  allowable    in 

B  Cowley    v.    Robertson,    •'!    Camp,  evidence  after  her  death. 

4'iS;  Caldwell   v.  Drake,  4  J.  J.  Marsh.  5  1  Kel).  281  ;  Alleyn,  72;  Angel  v. 

246.  Felton,    8   Johns.    149;    7    T.    R.  348; 

1  Ross   v.    Winners,   1    Halst.   366;  Gage  v.  Reed,  15  Johns.  403 ;  Gray  v. 

Sheppard  v,  Starke,  3  Munf.  29;  Brown  Thacker,  t  Ala  136;  Platnerv.Patehin, 

v.    Laaselle,   6    Blackf.    147;  Moore  v.  19  Wis.  333. 

92 


chap.  nr.        wife's  debts  and  contracts.  §  58 

liable.1  The  rule  as  laid  down  in  England  concerning  the 
wife's  personal  liability  on  her  debts  dum  sola  is  that  coverture 
does  not  wholly  relieve  her  from  the  consequences  of  judgment 
for  the  time  being ;  for  that  both  may  bo  taken  on  execution  ; 
and  when  the  wife  is  taken,  she  shall  not  be  discharged  unless 
it  appear  that  she  has  no  separate  property  out  of  which  the 
demand  can  be  satisfied.2  This  rule  does  not  seem  to  have 
been  recognized  with  such  strictness  in  this  country.3  But 
where  the  wife  after  marriage  pays  a  portion  of  her  debt,  con- 
tracted while  sole,  from  funds  derived  from  her  separate  prop- 
erty, it  is  said  that  the  husband  will  be  bound  by  the  act, 
unless  he  disaffirms  it  within  a  reasonable  time.4 

So  far  as  rights  of  third  parties  are  concerned,  the  liability  of 
the  husband  for  his  wife's  debts  dum  sola  cannot  be  affected  by 
any  antenuptial  contract  between  the  two;5  nor  of  course  by 
their  agreement  during  coverture.  The  special  contract  of  a 
husband  with  the  creditor,  relating  to  his  wife's  debt  dum  sola, 
furnishes  a  different  cause  of  action  to  the  creditor  from  that 
which  arises  out  of  the  debt  dum  sola  taken  by  itself.6 

§  58.  Wife's  General  Disability  to  Contract.  —  In  respect  to 
her  disability  to  contract,  the  wife  may  be  considered,  as  Mr. 
Bingham  has  remarked,  worse  off  at  the  common  law  than 
infants  ;  for  the  contracts  of  an  infant  are  for  the  most  part 
voidable  only,  while  those  of  married  women  are,  with  few  ex- 
ceptions, absolutely  void.  But  the  disabilities  incident  to  these 
two  conditions  rest  upon  different  grounds ;  for  the  disabilities 
attached  to  infancy  are  designed  as  a  protection  for  the  inex- 
perienced against  the  fraudulent,  while  those  incident  to  cover- 
ture  are  the   simple  consequence  of   that    sole   or    paramount 

1  As  to  judgment  and  scire  facias,  effect  of  husband's  bankruptcy  upon 
where  the  woman  dies  or  marries  after-  the  wife's  debts  dum  sola,  see  Schouler, 
wards,  &c  ,  see  Schouler,  Hus.  &  Wife,     Hus.  &  Wife,  §  96. 

§  96.  6  Harrison  v.  Trader,  27  Ark.  288. 

2  Tidd,  Pract.  9th  ed.  1026  ;  Sparkes  6  Wilson  v.  Wilson,  30  Ohio  St.  365. 
v.  Bell,  8  B.  &  C.  1  ;  Newton  v.  Roe,  7  The  common  law  as  to  the  wife's 
Man.  &  Gr.  329  ;  Evans  v.  Chester,  2  M.  antenuptial  debts  is  changed  consider- 
&  W.  847.  ably  by  our  modern   legislation.     See 

3  Mallory  v.  Vanderhevden,  3  Barb,  post,  cs.  11,  12;  Williams  v.  Mercier, 
Ch.  9;  s.  c.  1  Comst.  453."  9   Q.    B.   D.  337;    23    Q.    B.    D.   316; 

4  Hall  v.  Eaton,  12  Vt.  510.     As  to  §  411. 

93 


§  58  THE   DOMESTIC   RELATIONS.  [PART   II. 

authority  which  the  law  vests  in  the  husband.1  Common  sense 
teaches  that  married  women  have  sufficient  discretion  to  act 
for  themselves,  and  stand  on  a  different  footing  from  young 
children ;  this  the  English  law  fully  recognizes,  irrespective  of 
equity  rules,  by  empowering  adult  women  to  contract  up  to  the 
very  moment  of  their  marriage,  and  from  the  time  when  cover- 
ture ceases.  At  most  it  could  only  be  said  that  a  woman, 
while  living  in  the  married  state,  was  peculiarly  subject  to  in- 
fluence from  the  other  sex,  which  might  be  exerted  to  her 
disadvantage. 

The  husband  may  make  in  his  own  right  such  contracts  as  he 
pleases,  as  well  during  coverture  as  before.  He  is  never  presumed 
to  act  under  the  wile's  influence.2  But  the  wife  by  coverture 
becomes  disqualified  and  legally  irresponsible  in  this  respect, 
except  in  the  single  instance  where  her  husband  is  civiliter  mor- 
tuus,  as  we  have  already  stated ; 3  and  in  certain  localities  where 
the  separate  trade  custom  applied.4  But  otherwise  her  inca- 
pacity at  the  common  law  is  total. 

To  illustrate  the  wife's  disability.  She  cannot  earn  money 
for  herself.5  She  cannot,  jointly  with  her  husband  or  alone,  sign 
or  indorse  a  promissory  note,  so  as  to  bind  herself;  6  nor  execute 
a  bond  or  other  instrument  under  seal;7  nor  purchase  on  her 
own  credit ;  nor  agree  to  keep  a  money  deposit  payable  on  de- 
mand ;  nor  be  surety  for  her  husband  or  another;8  nor  bind  her- 
self by  a  recognizance  ;9  nor  execute  a  letter  of  attorney;10  nor 
otherwise  make  a  valid  contract.11     She  is  permitted,  as  we  shall 

1  See  Ring.  Inf.  &  Cov.  181,  182,  Whether  signing  as  surety  or  accom- 
Am.  <•■!. ;  2  Kent,  Com.  150;  post,  In-  modation  maker  or  promisor,  she  is  not 
fancy.  liable  at  law.    53  Wis.  101. 

2  City  Council  v.  Van  Roven,  2  Mc-  7  Whitworth  v.  Carter,  43  Miss.  61  ; 
Cord,   165.  Huntley  v.  Whitner,  77  N.  C.  392.     Not 

;;  Supra,  §  55.  even  a  replevin  bond.     84  Ind.  154. 

4  /V  8  Swing  »».   Woodruff,  41    N.  J.  L. 

6  Offley  v.  Clay,  2   Man.  &  Gr.  172  ;  469;  Gosman  v.  Cruger,  69  N.  Y.  87  ; 

c.  5,  post.  Luther  v.  Cote,  61  N.  H.  129;  60  N.  H. 

8  Ma  "ii  v.  Morgan,  2  Ad.  &  El.  30;  189. 

Snid'T  v.  Ridgeway,  49 I1L  522 ;  O'Daily  »  Eberwine  v.   State,   79  Ind.  266. 

v.  Morri     31  Ind,  ill;  Dollner  v.  Snow,  See  17  Vroom,  94. 

in    il,    96     Robertson   v.   Wilburn,  l  10  100  Mo.  571. 

Lea,  6  13  ;  Brown   i».  Orr,  29  Cal.  I^<>;  »  Avery  v.  Griffin,  L.  R.  6  Eq.  606; 

Tracy  o.  Keith,  n   Allen,  214;  58  Vt  Tobey  v.  Smith,  15  Gray,  535;  Gould- 

172;  60  N.  II.  189.  ing  v.  Davidson,  28  Barb.  438;  Lee  v. 

04 


CHAP.  III.]         WIFE'S    DEBTS   AND    CONTRACTS. 


§  59 


hereafter  see,  to  pass  her  real  estate  by  joining  in  a  deed  with 
her  husband ;  but  when  she  does  so  she  is  not  bound  by  her 
covenants,  nor  was  her  separate  conveyance  (except  by  some 
matter  of  record)  of  any  effect  whatsoever.1  Her  covenant  in  a 
mortgage  of  her  husband's  property,2  or  title  bond,  or  executory 
contract  to  convey  laud,3  is  equally  ineffectual.  A  sheriff's  sale 
of  her  land  upon  her  judgment  note,  given  as  security  for  her 
husband,  may  be  set  aside  as  void.4  In  all  these  cases  the  wife 
is  considered  as  under  the  husband's  dominion,  and  unable  to 
act  for  herself.5  On  the  same  principle  it  is  held  that  a  married 
woman  cannot  bind  himself  by  her  contract  to  convey  estate 
which  is  devised  to  her  in  trust  for  sale.6  The  executory  and 
unacknowledged  contract  of  a  married  woman,  being  void  as  a 
contract,  cannot  be  supported  as  against  her  on  the  ground  of 
estoppel."  Even  under  our  modern  legislation  recognizing  the 
wife's  contract  liability,  the  wife  is  sedulously  protected  against 
promises  extorted  by  the  fraud  or  duress  of  others.8 

§  59.      Wife's  Disability  to  Contract  extending  beyond   Cover- 
ture. —  So  far  is  this  doctrine  of  the  wife's   contract  disability 


Lanahan,  58  Me.  478.  But  as  to  sepa- 
rate estate  and  modern  legislation,  see 
post,  es.  10,  11.  Her  judgment  bond  is 
void.  Schlosser's  Appeal,  58  Penn.  St. 
493.  Likewise  her  warrant  of  attorney 
to  confess  judgment.  Swing  v.  Wood- 
ruff, 41  N.  J.  L.  4G9;  Shallcross  v. 
Smith,  81  Penn.  St.  32. 

1  2  Bl.  Com.  293,  351,  364,  and  notes 
by  Chitty  and  others ;  Robinson  v.  Rob- 
inson, 11  Bush,  174  ;  Ferguson  v.  Reed, 
45  Tex.  574  ;  Botsford  v.  Wilson,  75 
111.  133;  2  Kent,  Com.  150-154;  lb. 
167,168.  See  post,  c.  6.  Rule  applied 
to  a  land  patent  signed  by  husband  and 
wife.     Shartzer  v.  Love,  49  Cal.  93. 

2  Kitchell  v.  Mudgett,  37  Mich.  81. 

3  Stidliam  v.  Matthews,  29  Ark.  650  ; 
Oglesby  Coal  Co.  v.  Pasco,  79  111.  164; 
Harris  v.  Dodge,  72  Md.  186. 

4  Doyle  v.  Kelly,  75  111.  574. 

5  Marshall  v.  Button,  8  T.  R.  545 ; 
11  East,  301  ;  2  B.  &  P.  226,  3  B.  & 
C.  291  ;  Jackson  v.  Vanderheyden,  17 
Johns.  167  ;  Benjamiu  v.  Benjamin,  15 


Conn.  347;  Ayer  v.  Warren,  47  Me. 
217;  Young  v.  Paul,  2  Stockt.  401; 
Stillwell  v.  Adams,  29  Ark.  346  ;  Stock- 
ton v.  Farley,  10  W.  Va.  171  ;  Savage 
v.  Davis,  18  Wis.  608.  Aliter,  as  to 
modern  legislation,  &c,  cs.  10,  11,  post. 

6  Avery  v.  Griffin,  L.  R.  6  Eq.  606. 

'  Wood  v.  Terry,  30  Ark.  385 ;  Og- 
lesby Coal  Co.  v.  Pasco,  79  111.  164.  But 
cf.  Norton  v.  Nichols,  35  Mich.  148. 

Whether  the  rule  that  a  wife  is  not 
subject  to  estoppel  applies  to  her  de- 
liberate frauds,  see  c.  4 ;  37  La.  Aun. 
324 ;  25  Fla.  927. 

But  it  has  been  held  that  where  a 
wife  performs  on  her  own  part  —  as  in 
becoming  lessor  or  lessee  —  the  other 
contracting  party  cannot  avail  himself 
of  coverture  in  defence  of  her  suit.  Ray 
v.  Natural  Gas  Co.,  138  Penn.  St.  576. 

8  As  where  she  was  induced  by  a 
threat  of  arresting  her  husband.  Adams 
v.  Irving  Nat.  Bank,  116  N.  Y.  606; 
City  Bank  v.  Kusworm,  88  Wis.  188. 

95 


§  59  THE   DOMESTIC    RELATIONS.  [PART   II. 

carried,  that  the  agreement  of  a  widow,  after  her  husband's  death, 
to  pay  a  debt  which  she  had  contracted  during  coverture,  and 
which  consequently  was  not  binding  upon  herself,  but,  if  at  all, 
upon  her  husband,  has  been  treated  as  void,  on  the  ground  that 
the  promise  was  without  consideration  and  only  morally  binding.1 
And  so  is  it  with  the  wife's  promissory  note  for  her  husband's 
debt,  and  her  renewal  note,  which,  when  a  widow,  she  promises 
to  pay  or  acknowledges.2  As  a  rule,  of  course,  the  widow  can- 
not be  compelled  to  make  good  an  engagement  or  fulfil  a  contract 
which  she  entered  into  while  under  the  disability  of  coverture.3 

Lord  Nottingham,  in  a  case  mentioned  in  the  old  reports,  once 
refused  to  absolve  a  husband,  after  his  wife's  death,  from  pay- 
ment for  goods  which  she  had  purchased  prior  to  the  marriage, 
but  never  paid  for,  there  being  proof  that  he  had  actually  re- 
ceived the  goods,  and  the  debt  being  antenuptial.  His  lordship 
declared  with  earnestness  that  he  would  change  the  law  on  that 
point.4  But  in  this  case  it  appears  that  the  goods  did  not  actu- 
ally come  to  the  husband's  hands  until  after  the  wife's  death. 
And  the  authority  of  this  decision  has  since  been  greatly  im- 
paired.5 In  equity  the  creditors  of  the  first  husband  may,  where 
his  wife  was  administratrix,  follow  the  assets  in  the  hands  of  a 
second  husband,  although  the  wife  be  dead ;  and  at  law  during 
her  life.6 

The  contract  of  a  married  woman,  being  void,  is  likewise  un- 
enforceable against  her  after  divorce,  notwithstanding  her  sub- 
sequent promise  when  once  more  sui  juris;  for  such  promise  is 
without  consideration."  But  after  the  death  of  her  spouse  or 
her  divorce  from  him,  her  promise  which  is  not  a  naked  ratifica- 

1  Meyer  v.  Haworth,  8  Ad.  &  El.  Candy  v.  Coppock,  85  Ind.  594;  Long 

467;  Waul   v.  Kirkman,  25  Miss.  609  ;  v.   Rankin,  108  N.  C.  33.3;    Xesbitt  v. 

Lennox  v.  Eldred,  1  Thomp.  &  C.  140 ;  Turner,   155  Penn.    St.  429.    Cf.   140 

Kenl  v.  Rand,  64  X.  II.  45.  Penn.  St.  63;  141   Penn.  St.  170.     See 

Hut  in  another  case  it  was  held  a  55  Vt.  506,  as  to  her  separate  property, 
sufficient    consideration    to    Bupport  a         8  Puss  v.  Singleton,  1  Del.  Cli.  149. 
widow's    promissory   note,  that  it  had         4  Cha.  Ca.  295. 
been  given  by  her,  out  of  respect  for         6  lb.  ,■  l  Eq.  Cas.  Abr.  60. 
her  late  husband's  memory,  to  secure  a         fi  Cha.  Ca.80;  1  Vera.  309  ;  2  Vera. 

debt  dii-  by  him.     l  Cr.  &  J.281  ;  Tyr.  61,  11«;  1  Eq.  Cas.  Abr.  60,  61  ;  Cro. 

Iso  Nelson  v.  Searle,  8  Jnr.  Car.  603;    l   Roll.   Abr.  35.     See  Ma- 

290.  grader  w   Darnall,  6  Gill,  269. 

-  Hubbard   v.   Bugbee,  58  Vt.  172;         7  Putnam  v.  Tennyson,  50  Ind.  456. 

96 


£HAF.  III.]  WIFE'S    DEBTS    AND   CONTRACTS.  §  61 

tion  but  founded  on  a  new  consideration,  may  be  enforced  against 
her.  If  unenforceable  against  her  while  living,  her  contract  is 
of  course  unenforceable  against  her  estate  at  her  death.1 

§  GO.  Wife  binds  Husband  as  Agent.  —  But  although  the 
wife,  as  such,  has  no  power  to  make  a  contract,  she  is  allowed  at 
the  common  law  to  bind  her  husband  in  certain  cases  as  his 
agent.  Her  authority  may  be  general  or  special,  express  or  im- 
plied. Blackstone  says  that  the  power  of  the  wife  to  act  as  attor- 
ney for  her  husband  implies  no  separation  from,  but  is  rather  a 
representation  of,  her  lord.2  Whenever  the  husband  expressly 
empowers  his  wife  to  make  a  contract  for  him,  he  will  be  bound 
as  in  the  case  of  any  other  principal.  And  he  may  bind  himself 
in  like  manner  for  any  unauthorized  contract  proceeding  from  his 
wife  as  agent,  by  subsequent  conduct  on  his  part  amounting  to 
ratification.  But  greater  difficulty  arises  in  determining  his 
liability  upon  contracts  where  the  authority  is  not  express  but 
only  implied.  How  far  does  the  law  go  in  presuming  against 
the  husband,  and  what  are  the  proper  limits  of  an  implied  au- 
thority in  the  wife  to  bind  him  by  her  contracts  ?  This  is  an 
important  inquiry,  which  we  shall  presently  consider. 

But  let  us  premise,  as  a  suitable  conclusion  from  the  preced- 
ing sections,  that  the  husband  may  be  bound  in  one  of  two  ways, 
either  upon  his  own  contract  or  upon  that  made  by  the  wife  as 
his  agent ;  and  hence  he  may  be  held  liable  because  the  debt  or 
obligation  was  his  own,  or  because  his  wife  represented  him. 
The  natural  effect  of  his  joining  with  her  in  executing  a  con- 
tract or  instrument  would  be  to  render  it  his  individual  obliga- 
tion, since  he  is  sui  juris;3  while  if  she  executed  alone,  and 
without  a  suitable  agency  on  his  behalf,  the  obligation  would  be 
altogether  void. 

§  61.  Wife's  Necessaries;  Foundation  of  Husband's  Obliga- 
tion.—  On  the  important  principle  of  the  wife's  agency  rests 
the  liability  of  the  husband,  at  common  law,  in  contracts  made 
by  the  wife  for  necessaries.  It  is  a  clear  obligation  which  rests 
upon  every  husband  to  support  his  wife ;  that  is,  to  supply  her 

1  Davis  v.  Carroll,  71  Md.  568.  3  Dresel  v.  Jordan,  104  Mass.  497. 

-  1  Bl.  Com.  442  ;  2  .Man.  &  Gr.  172  ; 
Mizen  v.  Pick,  3  M.  &  W.  481. 

7  97 


§  61  THE    DOMESTIC    RELATIONS.  [PART    II. 

with  necessaries  suitable  to  her  situation  and  Lis  own  circum- 
stances and  condition  in  life.  Notwithstanding  a  man  married 
unwillingly,  —  as,  for  instance,  to  avoid  a  prosecution  for  seduc- 
tion or  bastardy,  —  he  is  bound  to  support  her.1  But  though 
this  obligation  appears  to  rest  on  the  foundation  of  natural  jus- 
tice, the  common  law  assigns,  as  the  true  legal  reason,  that  she 
may  not  become  a  burden  to  the  community.  So  long  as  that 
calamity  is  averted,  the  wife  has  no  direct  claim  upon  her  hus- 
band under  any  circumstances  whatever;  for  even  in  the  case  of 
positive  starvation  she  can  only  come  upon  the  parish  for  relief; 
in  which  case  the  parish  authorities  will  insist  that  the  husband 
shall  provide  for  her  to  the  extent  of  sustaining  life.2  If  a  hus- 
band fail  in  this  respect,  so  that  his  wife  becomes  chargeable  to 
any  parish,  the  statute  4  Geo.  IV.  c.  83,  §  3,  says  that  "  he  shall 
be  deemed  an  idle  and  disorderly  person,  and  shall  be  punishable 
with  imprisonment  and  hard  labor."  3  And  this  obligation  ex- 
tends to  the  whole  family,  with  such  modifications  as  will  be  more 
properly  noticed  in  treating  of  parent  and  child.  If  a  man 
marry  a  widow  he  is  not  bound  to  maintain  her  children ;  unless 
he  holds  them  out  to  the  world  as  part  of  his  own  family.4 
But  by  the  statute  4  &  5  Will.  IV.  c.  76,  §  57,  the  husband  is 
required  to  maintain,  as  part  of  his  family,  any  child  or  children, 
till  the  age  of  sixteen,  legitimate  or  illegitimate,  that  his  wTife 
may  have  at  the  time  of  entering  into  the  contract.5 

To  enforce  these  marital  obligations  the  law  takes  a  circui- 
tous course;  and  the  wife  may  secure  herself  from  want  against 
a  cruel  and  miserly  husband,  of  ample  means  to  support  her, 
by  pledging  his  credit  and  making  such  purchases  as  are  need- 
ful, on  the  strength  of  an  implied  authority  for  that  purpose. 
Here,  all  other  things  being  equal,  it  is  presumed  that  she 
her  husband's  agent;  and  no  direct  permission  need  be 
shown,  [ndeed,  wherever  the  facts  are  clear  that  those  articles 
were  actually  needed,  and  that  the  husband  failed  to  supply 
them,  ili:     presumption  is  carried  so  far  as  to  control  even  the 

1   State  v.  Ransell,  II  Conn.  433.  5  4  T.   R.  118;  Cooper  v.  Martin,  4 

-  Rex  v.  Flintatn,  l  B.  A  Ad.  227  ;  7     East,  76;  .'*  Esp.  N.  P.  1  ;  Hall  v.  Weir, 

Ad.  £  El.  819.  I  Allen,  261.     See  post,  Parent  &  Child, 

Macphers.  Inf.  42,  13  §  2.i7. 
«  Attridge  v.  Billings,  ">7  111.  489. 

98 


CHAP.  III.]         WIFE'S   DEBTS   AND   CONTRACTS.  §  Gl 

express  orders  of  the  husband  himself.  The  articles  for  which  a 
wife  is  allowed  to  pledge  her  husband's  credit  as  his  presumed 
agent  are  designated  at  common  law  as  necessaries. 

The  wife's  necessaries  are  such  articles  as  the  law  deems 
essential  to  her  health  and  comfort ;  chiefly  food,  drink,  lodg- 
ing, fuel,  washing,  clothing,  and  medical  attendance.  They 
are  to  be  determined,  both  in  kind  and  amount,  by  the  means 
and  social  position  of  the  married  pair,  and  must  therefore 
vary  greatly  among  different  grades  and  at  different  stages  of 
society.1  Thus  a  large  milliner's  bill  might  not  be  deemed 
necessaries  for  the  wife  of  a  laborer,  while  a  wealthy  merchant 
would  be  bound  to  pay  it.  So,  too,  necessaries  to-day  are  not 
what  they  were  fifty  years  ago.  Nor  is  the  ordinary  test  to  be 
found  in  the  real  situation  and  means  of  the  married  parties 
(for  this  a  tradesman  cannot  be  expected  to  investigate),  but  in 
their  apparent  situation,  the  style  they  assume,  and  the  estab- 
lishment they  maintain  before  the  world  ;  which  every  husband 
is  supposed  to  regulate  with  sufficient  prudence.2  Articles, 
too,  may  be  of  a  kind  which  the  law  pronounces  necessaries, 
and  yet  a  wife  may  be  so  well  supplied  as  not  to  need  the  par- 
ticular articles  in  question,  —  a  distinction  of  some  consequence. 
The  decisions  in  the  books,  relating  to  necessaries,  are  therefore 
somewhat  confusing,  as  might  be  expected ;  the  more  so  since 
the  dividing  line  between  law  and  fact  in  such  cases  is  not 
marked  with  distinctness.  Sometimes  the  court  decides  whether 
articles  are  necessary,  sometimes  a  jury.  The  ordinary  rule  is 
that  the  court  shall  decide  whether  certain  articles  are  to  be 
classed  as  necessaries ;  while  the  jury  may  determine  the  ques- 
tion of  amount,  and  apply  this  classification  to  the  facts;3  but 
this  rule,  though  seemingly  precise,  is  found  difficult  in  its 
practical  application.4 

1  2  Bright,  Hus.  &  Wife,  7,  8;  Sel.  Penn.  St.  251  ;  Paynes  v.  Bennett  114 
N.  P.  260;  6  Car.  &  P.  419;  Cro.  Jac.  Mass.  424;  Phillipsoii  v.  Hayter,  L.  R. 
257,  258  ;  n.  to  2  Kent,  Com.   10th  ed.     6  C.  P.  38. 

146;  lb.  138,  139;  1  Bl.  Com.  442.  i  Among  the  cases  we  find  the  fol- 

2  Waithman  v.  Wakefield,  1  Camp,  lowing  articles  classed  as  necessaries 
120.  for  the  wife:  Board  and  lodging.     Med- 

3  Renaux  v.  Teakle,  20  E.  L.  &  Eq.  icines,  medical  attendance,  and  reason- 
345 ;  1  Pars.  Contr.  241  ;  Hall  v.  Weir,  able  expenses  during  illness.  Harris 
1    Allen,    261;    Parke   v.    Kleeber,   37  v.   Lee,    1    P.   Wins.   438;  Mayhew   v. 

99 


§62 


THE   DOMESTIC    RELATIONS. 


[PART   II. 


§    62.   Wife's  Necessaries;   Living  together  or  separate.  —  The 

husband's  liability  for   necessaries  may  arise  in   two   distinct 


Thayer,  8  Gray,  172;  Cothran  v.  Lee, 
24  Ala.  3S0 ;  Webber  v.  Spannhake,  2 
Redf.  (N.  Y.)  258.  Furniture  of  a 
house  for  a  wife  to  whom  the  court  had 
decreed  £380  a  year  as  alimony.  Hunt 
v.  De  Blaquiere,  5  Ring  550.  Silver 
fringes  to  a  petticoat  and  side  saddle 
(value  .£94)  furnished  to  the  wife  of  a 
serjeant-at-law.  Skin.  349.  Watches 
and  jewelry  such  as  befit  the  style  of 
dress  which  the  husband  sanctions, 
especially  if  not  wholly  ornamental 
Raynes  v.  Bennett,  114  Mass.  424.  But 
as  to  diamond  earrings,  see  Bergh  v. 
Warner,  47  Minn.  250.  Reasonable 
legal  expenses  incurred  by  a  wife  who 
had  been  deserted  by  her  husband,  pre- 
liminary and  incidental  to  a  suit  for 
restitution  of  her  conjugal  rights,  ami 
in  obtaining  professional  advice  as  to 
the  proper  method  of  dealing  with 
tradesmen  who  were  pressing  their  hills. 
Wilson  v.  Ford,  L.  R.  3  Ex.  63.  Rea- 
sonable legal  expenses  in  defence  of  a 
prosecution  instituted  against  a  wife  by 
her  husband  (Warner  v.  Heiden,  28 
Wis.  517),  and  even,  in  a  just  cause,  for 
prosecuting  him.  Shepherd  v.  Mac- 
koul,  3  Camp.  32G ;  Morris  r.  Palmer, 
39  N.  H.  123.  As  to  the  defence  of  the 
wife  upon  a  prosecution  from  without, 
see  38  111.  App.  593.  A  horse  worth 
$45  for  the  invalid  wife  of  a  miller 
earning  $30  per  month,  in  order  that 
she  might  take  exercise  as  advised  bj 
a  physician  ;  the  question  of  suitable 
nesB,  however  being  left  to  the  jury. 
Cornelia  <-.  Ellis,  1 1  111.  584.  The  cost 
of  divorce  proceedings,  including  fees 
of  a  proctor,  when-  the  wife  had  reason 
aide  ground  b>r  instituting  them,  hut 
not  otherwise,  Brown  v.  Ackroyd,  34 
B.  L.  &  Eq.  214;  Porter  >•.  Briggs,  38 
Iowa,  166.  lint  cf.  this  note,  post.  A 
Bet  <«i  li,  and  reasonable  den- 

tistry. Freeman  v.  Holmes,  62  Ga.  556; 
Gilman  v.  Andrus,  28  Vt  241.  Bouse- 
hold  Bupplii  -  reasonable  and  proper  for 

the  ordinary  use  of  a  family,  alth jh 

the  wife  receives  the  earnings  of  two 
100 


daughters  living  with  her.  Hall  v. 
Weir,  1  Allen,  261.  Perhaps  a  piano. 
Parke  v.  Kleeber,  37  Penn.  St.  251. 
But  see  Chappell  i\  Nunn,  41  L.  T. 
2S7;  138  Mass.  358.  A  proper  surgical 
operation.     70  Md.  162. 

But,  on  the  other  hand,  the  follow- 
ing articles  have  been  held  not  to  be 
necessaries  :  Articles  of  jewelry  for  the 
wife  of  a  special  pleader.  Montague  v. 
Benedict,  3  B.  &  C.  631.  Diamond  ear- 
rings iu  a  doubtful  case,  47  Minn.  250. 
Semble,  a  sewing-machine.  99  Penn. 
St.  586.  A  deed  oi  separation.  Ladd 
w.  Lynn,  2  M.  &  W.  265.  The  expense 
of  an  indictment  by  the  wife  for  assault. 
Grindell  v  Godmond,  5  Ad.  &  El.  755. 
Especially  if  the  grounds  for  instituting 
criminal  proceedings  did  not  appear 
reasonable.  Smith  v.  Davis,  45  N.  H. 
566.  Counsel  fees  in  a  suit  for  divorce 
or  to  enforce  a  marriage  settlement, 
whether  the  wife  be  plaintiff  or  defend- 
ant. Pearson  v.  Darrington,  32  Ala. 
227  ;  Thompson  v.  Thompson,  3  Head, 
527;  Schouler,  Hus.  &  Wife,  §  105; 
Dow  v.  Eyster,  79  111  254;  Whipple  v. 
Giles,  55  N.  H.  139  ;  Clarke  v.  Burke, 
65  Wis.  359.  In  a  divorce  suit  the  tri- 
bunal for  equity  or  divorce  regulates 
allowances  of  the  kind;  there  is  no 
action  at  law.  Wolcott  v.  Patterson, 
loo  Mich.  227;  Westcott  v.  Hinckley, 
56  N.  J.  L.  343.  Legal  expenses  and 
fees  are  sometimes  chargeable  against 
a  husband,  in  cases  of  this  sort,  because 
the  statute  says  so.  Thomas  v  Thomas, 
7  Bush,  665;  Warner  >:  Heiden,  28 
Wis.  517;  Glenn  v.  Hill,  50  Ga.  94. 
Distinctions  are  taken  ;  as  e.  </  in  favor 
<d'  a  wife  who  defends  against  her  hus- 
band's complaint.  133  Mass.  503.  The 
wife's  position  is  a  hard  one  if  she  can 
neither  employ  counsel  on  her  own 
account  or  her  husband's.  See  103 
Penn.  St.  473.  Decisions  differ;  but 
the  weight  of  authority  is  that  an  action 
at,  law  for  his  fees  cannot  be  maintained 
by  a  solicitor  who  prosecutes  or  defends 
on  the  wife's  behalf  against  her  husband 


CHAP.  III.]  WIFE'S    DEBTS    AND   CONTRACTS. 


§03 


classes  of  cases:  first,  where  the  wife  lives  with  him;  second, 
where  she  lives  separate  from  him.  And  where  the  wife  lives 
with  him,  the  husband's  assent  to  her  contract  for  necessaries 
is  inferred  from  circumstances  which  show  authority  actually 
conferred,  or  else  the  law  supplies  an  assent  fur  her  benefit 
where  he  has  improperly  refused  or  neglected  to  provide  for  her 
wants.  Where  they  live  apart,  separation  is  either  voluntary 
or  involuntary.  Let  us  consider  these  two  classes  of  cases 
separately. 

§  63.  Wife's  Necessaries  where  Spouses  live  together.  — 
First,  then,  as  to  a  husband's  liability  where  his  wife  lives  with 
him.  Here  we  are  met  at  the  outset  by  the  broad  presumption 
of  assent  which  cohabitatiou  of  itself  furnishes.  The  simple 
circumstance  that  husband  and  wife  are  living  together  has 
been  generally  held  sufficient,  when  nothing  to  the  contrary 
intervenes,  to  raise  a  presumption  that  the  wife  is  rightfully 
making  such  purchases  of  necessaries  as  she  may  deem  proper.1 


Fees  and  retainers  for  more  solicitors 
than  were  needful  cannot  be  allowed. 
Nor  attorney's  fees  in  a  groundless  suit 
brought  by  the  wife  against  a  third 
party  without  the  husband's  consent. 
46  Minn.  23.  Passage  tickets  in  gen- 
eral to  enable  the  wife  to  travel,  except 
perhaps  for  a  clearly  needful  purpose. 
Knox  v.  Bushell,  3  C.  B.  x.  s.  334. 
Medical  attendance  rendered,  without 
the  husband's  assent,  by  a  quack  doctor. 
Wood  v.  O'Kelly,  8  Cush.  406.  Though 
when  a  husband  disputes  a  bill  for 
medical  attendance  on  the  ground  of 
malpractice,  or  an  unnecessary  surgical 
operation,  the  burden  is  on  him  to  show 
it.  M 'Chilian  v.  Adams,  19  Pick.  333. 
"Religious  instruction,"  or  the  rent  of 
a  church  pew.  St.  John's  Parish  v. 
Bronson,  40  Conn.  75.  Articles,  in 
short,  which  are  extravagant  and  alto- 
gether beyond  the  husband's  circum- 
stances and  degree  in  life.  Caney  v. 
Patton,  2  Ashm.  140.  See  Phillipson 
v.  Hayter,  L.  E.  6  C.  P.  38. 

Money  lent  the  wife  for  the  pur- 
chase of  necessaries,  or  for  other  pur- 
poses however  suitable,  is  not  classed 
with  necessaries   at   the  common  law ; 


probably  because  husbands  do  not  often 
confer  an  authority  liable  so  easily  to 
abuse.  Walker  v.  Simpson,  7  W.  &  S. 
83;  Stone  v.  McXair,  7  Taunt.  432; 
Stevenson  v.  Hardy,  3  Wils.  388;  Kuox 
v.  Bushell,  3  C.  B.  n.  S.  334;  Skinner  r. 
TirrelL  159  Mass.  474.  Especially 
where  the  spouses  live  apart.  But 
equity  takes  a  view  more  consonant  to 
the  wants  of  a  distressed  wife,  and  al- 
lows the  person  lending  the  money  to 
stand  in  the  stead  of  the  tradesman, 
and  to  recover  if  the  money  was  actually 
used  for  necessaries ;  thus  leaving  him 
bound,  in  other  words,  only  to  see  that 
his  loan  is  properly  applied.  Harris  <;. 
Lee,  1  P.  Wins.  482  ;  Walker  v.  Simp- 
son, 7  W.  &  S.  83  ;  Keuyon  v.  Farris, 
47  Conn.  510  ;  Deare  v.  Soutten,  L.  It. 
9  Eq.  151;  Leuppie  v.  Osborn  (1894), 
N.  J.  Eq.  See  Schullhofer  v.  Metzger, 
7  Rob.  (NT.  Y.)  576. 

1  2  Bright,  Hus.  &  Wife,  6,  7 ;  Bull. 
N.  P.  134;  Salk.  113  ;  7  Car.  &  P.  756. 
See  also  1  Vent.  42  ;  2  Vent.  155;  Mon- 
tague v.  Benedict,  3B.&C.  631  ;  Manby 
v.  Scott,  1  Mod.  124;  1  Sid.  109  ;  1  Roll. 
Abr.  351,  pi.  5;  Freestone  v.  Butcher, 
9  Car.  &  P.  643. 

101 


§  63  THE   DOMESTIC    RELATIONS.  [PART   II. 

Whoever  then  supplies  her  in  good  faith,  as  the  law  has  usually 
been  understood,  need  inquire  no  further,  but  may  send  his  bill 
to  her  husband.  This  rule  is  a  fair  one ;  for  it  is  not  to  be 
supposed  that  a  husband  will  go  in  person  to  buy  every  little 
article  of  dress  or  household  provision  which  may  be  needful 
for  his  family.  As  Lord  Abinger  observed,  a  wife  would  be  of 
little  use  to  her  husband  in  their  domestic  arrangements,  if  his 
interference  was  always  to  be  deemed  necessary.1  Accordingly, 
if  an  action  be  brought  against  the  husband  for  the  price  of 
goods  furnished  under  such  circumstances,  it  must  be  taken 
prima  facie  that  these  goods  were  supplied  by  his  authority, 
and  he  must  show  that  he  is  not  responsible.2 

The  wife's  contract  for  necessaries  will  bind  the  husband  to  a 
still  greater  extent  if  the  evidence  warrant  the  inference  that  a 
more  extensive  authority  has  in  fact  been  given.3  Thus  the 
presumption  which  cohabitation  furnishes  is  strengthened  by 
proof  that  the  wife  has  been  permitted  by  the  husband  to  pur- 
chase other  articles  of  the  same  sort  for  the  use  of  the  household.4 
But  it  must  be  ordinarily  things  for  what  may  be  termed  the 
domestic  department,  to  which  the  wife's  authority  to  bind  her 
husband  is  restricted.5 

Yet  we  must  observe  that  the  question  is,  after  all,  one  of 
evidence ;  it  turns  upon  the  question  of  authority  from  the  hus- 
band ;  and  this  presumption  in  the  wife's  favor  may  be  rebutted 
by  contrary  testimony  on  the  husband's  behalf.6  Lord  Holt 
says:  "His  assent  shall  be  presumed  to  all  necessary  contracts., 
upon  the  account  of  cohabiting,  unless  the  contrary  appear."1 

1   Emmett   v.   Norton,  8  Car.    &   P.  6  Lane  v.  Ironmonger,  13  M.  &.  W. 

506.  368. 

-  Clifford  v,  Laton,  3  Car.  &  P.  15,  "  Etherington    v.   Parrott,   1    Salk. 

per    Lord    Tenterden.     But    see    post,  118.     See  also,  to  the  same  effect,  Mc- 

p.  99;  Debenham  v,   Mellon,   L.  R.   5  Cutchen  v.  McGahay,   11    Johns.  281; 

u   B.  D    194  Montague  v.  Benedict,  3  B.  &  ('.  c.-ii  ; 

:i  ii  Bright,  Hus.  &  Wife,  9 ;    cases  and  note  hy  Am.  editor  to  Bing.  Inf. 

cited  in  note  to  Filmer  i>.  Lynn,  4  Nev.  is;.     The    position    assumed   by  Mr. 

£  Man  559  j  M'George  v. Egan,  7  Scott,  Story,  in  h is  work  on  Contracts,  that, 

'            L12.  a     to  the  wife's   necessaries,  "  the  law 

4  I  Sid.  128;  Jewsbnry  v.  Newbold,  raises  an  uncontrollabh   presumption  of 

40  E.  I.  &   Eq.  518.  assent  on  the  pari  of  the  husband,"  is 

■  Phillipson  v.  Hayter,  L.  R.6C.  1'.  therefore    incorrect.     Story,  Contr.  2d 

38.  ed.  §  'J7.     "  What  the  law  dors  infer  is, 

L02 


CHAP.  III.]  WIFE'S    DEBTS    AND    CONTRACTS.  §  63 

Not  only  is  the  husband  permitted  to  show  that  articles  in  con- 
troversy are  not  such  as  can  be  considered  necessaries,  but  he 
may  show  that  he  supplied  his  wife  himself  or  by  other  agents, 
or  that  her  gave  her  ready  money  to  make  the  purchase.1  This 
is  on  the  principle  that  the  husband  has  the  right  to  decide  from 
whom  and  from  what  place  the  necessaries  shall  come,  and  that, 
so  long  as  he  has  provided  necessaries  in  some  way,  his  marital 
obligation  is  discharged,  whatever  may  be  the  method  he  chooses 
to  adopt.  Accordingly  in  the  class  of  cases  which  we  are  now 
considering,  namely,  where  the  spouses  dwell  together,  so  long 
as  the  husband  is  willing  to  provide  necessaries  at  his  own  home, 
he  is  not  liable  to  provide  them  elsewhere.2  In  general,  while 
the  spouses  live  together,  a  husband  who  supplies  his  wife  with 
necessaries  suitable  to  her  position  and  his  own  is  not  liable  to 
others  for  debts  contracted  by  her  on  such  an  account  without 
his  previous  authority  or  subsequent  sanction.3 

As  a  rule  a  husband  who  furnishes  his  wife  and  family  with 
necessaries,  in  any  reasonable  manner,  has  the  right  to  prohibit 
particular  persons  from  trusting  or  dealing  with  her  on  his 
account.  Notice  to  this  effect,  properly  given,  will  be  effectual 
as  against  any  presumption  which  cohabitation  raises.4  And 
notice  given  to  a  tradesman's  servant  has  been  held  sufficient 
notice  to  the  master.  But  notice  given  in  the  newspapers  not  to 
trust  a  wife  is  held  to  be  of  no  effect  against  such  as  have  not 
had  actual  notice.5  A  written  notice  to  the  tradesman  is  in 
good  form.6  But  a  successful  defence  against  one  bill  is  not 
sufficient  notice  of  prohibition  against  subsequent  bills.7  In 
order  to  bind  the  husband  for  goods  furnished  after  notice  to 
cease  furnishing,  the  seller  must  show  not  only  that  the  articles 

that  the  wife  has  authority  to  contract  1  1  Sid.  109  ;  Etherington  v.  Parrott, 

for  things  that  are  really  necessary  and  2  Ld.  Raym.  1006. 

suitable  to  the  style  in  which  the  hus-  2  Morgan  p.   Hughes,  20  Tex.  141  ; 

band  chooses  to  live,  in  so  far  as  the  Jolly  v.  Rees,  15  C.  B.  nt.  s.  628. 

articles  fall  fairly  within  the  domestic  3  Seaton  v.  Benedict,  5  Bing.  28. 

department    which    is   ordinarily   con-  4  McCutchen  v.  McGahay,  1 1  Johns. 

fulcd  to  the  management  of  the  wife."  281;  Keller  v.  Phillips,  39  N.  Y.  351. 

Willes,  J.,  in  Phillipson  v.  Havter,  L.  R.  5  Walker  v.  Laighton,  11  Fost.  (N. 

6  C.  P.  38.     And  see  Bovill,  C.  J-,  lb.,  H.)  111. 

to  the  same  effect.  6  66  Iowa,  698. 

7  Ogden  v.  Prentice,  33  Barb.  160. 

103 


§  64  THE   DOMESTIC   KELATIONS.  [PART   II. 

lie  furnishes  are  necessaries,  but  that  the  husband  failed  to 
supply  them  properly.1 

Generally,  in  such  cases,  it  has  been  said  the  burden  of  proof 
is  upon  the  husband.2  Such  a  statement,  however,  must  be 
taken  with  caution.  Cohabitation  furnishes,  as  we  have  seen,  a 
presumption  of  authority ;  but  the  latest  English  decisions  go 
very  far  toward  annihilating  that  presumption  by  insisting  that 
the  question  of  the  wife's  express  or  implied  authority  is  purely 
one  of  fact  according  to  the  circumstances  of  each  case,  where 
the  spouses  live  together.  And  the  English  court  of  appeals  for 
such  cases  3  has  lately  confirmed  a  lower  tribunal,4  as  though  to 
dispense  very  considerably  with  the  necessity  of  notice  to  trades- 
men on  the  part  of  a  husband  who  means  to  supply  his  wife 
properly,  and  at  the  same  time  prevent  her  from  pledging  his 
credit.  The  point  decided,  however,  affects  only  tradesmen  and 
others  who  have  had  no  previous  dealings  with  the  wife,  to  which 
the  husband's  assent  was  given.5 

§  G-4.  Wife's  Necessaries  where  Spouses  live  together ;  Same 
Subject  continued.  —  Another  point,  as  we  have  already  sug- 
gested, is  available  to  the  person  who  has  furnished  necessaries 
on  the  general  principles  of  agency ;  namety,  that  a  husband's 
subsequent  ratification  is  as  good  as  a  previous  authority.  So, 
then,  if  it  can  be  shown  that  the  husband  knew  his  wife  had  or- 
dered certain  necessaries,  and  yet  failed  to  rescind  the  purchase; 
or  if  there  be  proof  that  he  knew  she  wore  the  articles  and  yet 
e.\] tressed  no  disapprobation,  — the  law  presumes  approval  of  her 
contract  and  binds  him.6  To  this  principle,  perhaps,  may  be 
referred  the  rule  which  Mr.  Iioper  further  states  (without,  how- 
,  citing  any  authorities),  that  the  husband  is  liable  whenever 

1   Barr  v.  Armstrong,  56  Mo.  577.  in  this  country  by  Woodward  v.  Barnes, 

-  Tebbeta  v.  Hapgood,  34  N.  11.4:20.  43   Yt.   330.     But  cf.  Cothran  v.  Lee, 

■■  Debenham  v.  Mellon,  L.  R.5Q.  B.  24  Ala.  380;  Schonler,  llus.  &  Wife, 

I)  394.     Doubt  is  thrown  by  this  deci-  §  107. 

B10D   upon  Johnston   V.  Sumner,  .'J   II.  &  *>  Seaton  v.  Benedict,  5  Bipg.  28;  2 

N.  261.  Moo.  &  P.  74;  Parke,  B,  in   Lane  v. 

1  Jolly  v.  Rees,  15  C.  B.  n.  b.  628.  Ironmonger,   13   M.  &   W.   368;    Dsy 

•'•  Debenham  i>.  Mellon,  L.  R.  5  <l  B.  v.  Burnham,  36  Vt  37?  Woodward  r 

n  394.     The  opinion  of  Bramwell,  L.  J.,  Barnes,  43  Vt.  330;  Ogden  v.  Preatirj* 

in  this  case  is  worthy  <>f  careful  pern-  .'!.')  Barb.  1G0. 

sal.     The   same   principle  is  confirmed 

104 


CHAP.  III.]  WIFE'S    DEBTS    AND    CONTRACTS.  §  64 

the  goods  purchased  by  his  wife  come  to  her  or  his  use  with  his 
knowledge  and  permission,  or  when  he  allows  her  to  retain  and 
enjoy  them  ;  in  other  words,  that  a  legal  liability  becomes  fixed 
from  the  fact  that  the  husband  and  his  household  take  the  bene- 
fit of  the  purchase.1  But  the  mere  fact  that  a  husband  sees  his 
wife  wearing  articles  purchased  without  authority  will  not  charge 
him ;  the  question  is  one  of  approval  or  disapproval,  assent  or 
dissent,  and  the  presumption  against  him  may  be  rebutted.2  If 
the  husbaud  promises  to  pay  for  necessaries  already  bought,  such 
as  he  ought  to  supply,  it  is  a  ratification,  even  though  he  further 
directs  the  tradesman  to  supply  no  more.3 

The  husband's  dissent  to  his  wife's  purchase  of  necessaries 
should  be  expressed  in  an  effectual  and  suitable  manner.  Mere 
objection  on  his  part  is  insufficient.  Thus  a  bill  for  medical 
attendance  must  be  paid  by  him,  even  though  he  objected  to  the 
visits,  as  long  as  he  was  present,  and  gave  no  notice  to  the  phy- 
sician that  the  latter  must  look  elsewhere  for  payment.4  And 
private  araugements  between  husband  and  wife  as  to  the  method 
of  payment  cannot  affect  the  rights  of  third  parties  who  were 
entitled  to  notice  thereof  and  failed  to  receive  it.5  If  one  means, 
when  sued  in  assumpsit  for  necessaries,  to  defend  the  action  as 
to  part  only,  it  would  appear  that  his  proper  plea  will  be  that  he 
is  not  liable  beyond  a  certain  amount,  and  he  should  pay  that 
amount  into  court.6  But  if  he  means  to  dispute  the  charge  alto- 
gether, common  honesty  dictates  that  the  articles  unwarrantably 
purchased  should  be  restored  without  delay.7  He  may  introduce 
evidence  at  the  trial  to  show  that  the  commodities  in  question 
were  not  necessaries,  inasmuch  as  the  wife  had  incurred  other 

1  2  Roper,  Hus.  &  Wife,  112;  2  &  Nor.  2G1.  We  have  seen,  supra, 
Bright,  Hus.  &  Wife,  9.  Mr.  Maequeen  §  63,  that  the  latest  English  cases  eon- 
(Hus.  &  Wife,  note  to  p.  132)  points  out  siderably  reduce  the  tradesman's  right 
tliis  statement  of  Mr.  Roper  with  a  of  notice  as  formerly  understood.  De- 
doubt  as  to  the  authority,  although  he  benham  v.  Mellon,  L.  R.  5  Q.  B.  D. 
admits  the  justice  of  such  a  rule,  on  the  394. 

civil-law  maxim  that   "no   one  should  c  Emmet   v.   Norton,   8   Car.   &    P. 

enrich  himself  at  another's  loss."  506. 

2  Atkins  v.  Curwood,  7  Car.  &  P.  "  Macq.  Hus.  &  Wife,  136 ;  Gilmau 
756.  v.  Andrus,  28  Vt.  241.     See  Turtle  v. 

8  Conrad  r.  Abbott,  132  Mass.  330.        Holland,  43  Vt.  542;  Baker  v.  Carter, 
4  Cothran  v.  Lee.  24  Ala  380.  83  Me.  132. 


6  II.;  Johnston  v.  Sumner,  3  Hurl. 


105 


§  G4  THE    DOMESTIC    RELATIONS.  [PART   II. 

similar  debts  with  other  parties.1  In  a  word,  the  question  is 
(in  the  absence  of  such  evidence  of  necessity  as  may  show  an 
agency  in  law)  whether  there  was  an  agency  and  authority  in 
feet.2 

The  presumption  of  an  agency  on  her  husband's  behalf  for 
necessaries  (which  is  strong  because  it  is  the  husband's  duty  to 
furnish  them)  may  be  overcome  by  the  fact  of  a  purchase  by  the 
wife  upon  her  own  or  some  third  person's  credit,  wherever  she  is 
really  trusted  as  principal  herself,  or  as  the  agent  of  some  one 
else  than  her  spouse  ;  or  where  the  third  party  ordered  them  in 
person.3  In  all  cases  the  husband  will  be  discharged  from  lia- 
bility where  it  appears  that  the  goods  were  not  supplied  on  his 
credit,  but  that  the  party  furnishing  them  trusted  the  wife  indi- 
vidually.4 She  might  have  separate  property,  independently  of 
her  husband,  to  which  the  tradesman  looked  for  payment,  or  a 
special  allowance  of  sufficient  amount  might  have  been  made  her 
by  her  husband.5  Thus  where  the  husband  during  a  temporary 
absence  made  an  allowance  to  his  wife,  he  was  held  not  to  be 
liable  for  necessaries  supplied  to  her,  the  tradesman  having 
trusted  to  payment  from  her  allowance.6  So  if  credit  be  given 
to  any  third  party,  the  husband  is  not  liable.7  And  of  course 
if  the  tradesman  has  agreed  not  to  charge  him,  there  is  no  lia- 
bility incurred  by  the  husband.8  Though  the  wife  be  without 
property,  the  rule  is  the  same;  except  that  no  wife  can  be  per- 
sonally bound ;  and  it  would  appear  that  the  husband  may  give 
permission  to  trust  his  wife  on  her  separate  credit  without  in- 

I   Renaux  v.  Teakle,  20  E.  L.  &  Eq.  6  Levett  v.   Pcnrice,  24  Mis?.  416; 

34.").  Simmons  v.  McElwain,  26  Barb.  420; 

-  Read   v.  Teakle,  24  E.  L.  &  Eq.  McMahon  v.  Lewis,  4  Bush,  138 ;  Weis- 

332.  ker  v.  Lowenthal,  31   Md.  413.      Her 

'■'■  Though    as   to   the    right   of    lier  separate  estate   will   be  liable   accord- 

father   or  any  other    third   person    to  ingly.     86  Va.  328.    Ami  thus  may  a 

in  place  of  ;i  tradesman,  under  wife  contract  for  the  cost  of  her  divorce 

proper  circumstances  of   necessity,  see  or  other  litigation.     Wolcott  v.  Patter- 

ra,  §  61,  /'.  son,  loo  Mich.  227. 

1  :;  Camp.  22;  5  Taunt.  356,  Bear-         °  Holt  v.  Brien,  4  B.  &  Aid.   252; 

ton  v.  Darrington,  32  Ala.  227;  Btam-  Montague  v.   Benedict,  3  B.  &  C.  631 ; 

'.  Macomb,  2  Wend.  454;  Moses  Harshaw  v.  Merry  man,  18  Miss.  106; 

-    i        irtie  2  Hill  (S. ''.),  3:::. ;  Carter  Renaux  v.  Teakle,  20  E.  L.  &  Eq.  345. 
v  Howard, 39  Vt,  106;  Bugbeev.  Blood,         "  Harvey  v.  Norton,  i  Jur.  42. 
48  Vt.  497.    8ee33  Minn.  370.  8  Dixon  v.  Hurrell,  8  Car.  &  P.  717. 

L06 


CHAP.  III.]         WIFE'S   DEBTS   AND   CONTRACTS.  §  66 

curring  a  personal  liability.1  Where  the  wife  actually  pays  out 
of  her  own  separate  means  for  necessaries,  this  does  not  create  a 
liability  against  her  husband  for  repayment,  aside  from  circum- 
stances importing  a  promise  on  his  part  to  make  it.2 

§  65.  Wife's  Necessaries  where  Spouses  live  together ;  Sub- 
ject continued.  —  The  usual  analogies  of  agency  may  be  tran- 
scended, notwithstanding  the  spouses  live  together,  when  the 
one  is  truly  delinquent,  and  the  other  deprived  of  the  support 
owing  her.  Wherever  the  husband  neglects  to  supply  his  wife 
with  necessaries,  or  the  means  of  procuring  them,  she  may  ob- 
tain what  is  strictly  needful  for  her  support,  although  it  be 
against  his  wishes,  on  the  pledge  of  his  credit.  And  the  person 
furnishing  the  articles  may  sue  the  husband  notwithstanding 
he  has  been  expressly  forbidden  to  trust  her.3  But  here  the 
law  raises  a  presumption  of  agency  only  for  the  purpose  of  en- 
forcing a  marital  obligation.  Such  an  agency  is  perhaps  an 
agency  of  necessity.4  And  the  tradesman  or  other  party  fur- 
nishing supplies  when  forbidden  is  bound  to  show  affirmatively 
and  clearly  that  the  husband  did  not  provide  necessaries  for  his 
wife,  suitable  to  her  condition  in  life.5  If  the  husband  ex- 
pressly contracted  for  his  wife's  necessaries,  the  party  furnishing 
them  has  no  recourse  against  the  wife's  separate  property.6 

§  66.  Wife's  Necessaries  where  Spouses  live  apart.  —  In  the 
second   class  of  cases  which   we  are  to  consider,  the  husband's 

1  Taylor  v.   Shelton,  30  Conn.  122;  Woodward  v.  "Barnes,  43  Vt.  330  ;  Mc- 

Valentine  v.  Bell,  66  Vt.  280.     For  cir-  Gratli  v.  Donnelly,  131  Peim.  St.  549. 
cumstanees  thus  repelling  the  presump-  *  Pollock,  C.  B.,  in  Johnston  v.  Sum- 

tion  of  agency,  see  Schouler,   Hus.  &  ner,  3   H.  &  N.   261,  likens  the  agency 

Wife,  §  109,  and  cases  cited  ;  Mitchell  under  such  circumstances  to  that  which 

v.  Treanor,   11   Ga.  324;    2   Tyr.   523.  the   captain   of  a  shijJ   sometimes   ex- 

The   husband  is   not   relieved    by   the  ereises. 

single  circumstance  that  the  goods  were  5  Keller    v.  Phillips,  39  N.  Y.  351  ; 

charged  ou  the  shop  books  to  the  wife,  Cromwell  v.  Benjamin,  41  Barb.  558; 

since  prima  facie   the   actual   credit  is  Woodward  v.   Barnes,  43  Vt.  330.     As 

always  supposed  to  lie  given  to  the  hus-  to   suing  for   support   of  the   wife   as 

band.     Jewsbury  v.  Newbold,  40  E.  L.  a  pauper,   see  Mouson  v.   Williams,  6 

&  Eq.  518;  Godfrey  v.  Brooks,  5  liar-  Gray,  416;  Puimney  v.  Keyes,  7  N.  H. 

ring.  396;  Furlong  v.  Hyson,  35  Me.  571;  Norton  v.  Rhodes,  18  Barb.  100; 

332;  83  Me.  132.  Commissioners  v.  Hildebrand,  1  Carter, 

-  Nostrand  v.  Ditmis,  127  N.  Y.355;  555. 
c.  14,  post.  6  Baker  v.  Stratton,  52  N.  J.  L.  277. 

3  Keller  v.   Phillips,  39  N.  Y.  351 ;  But  see  §  144  a. 

107 


§  66  THE   DOMESTIC    DELATIONS.  [PART   II. 

liability  for  his  wife's  necessaries  arises  where  they  are  living 
apart.  The  rule  is  that  where  the  husband  unlawfully  aban- 
dons his  wife,  turns  her  away  without  reasonable  cause,  or 
compels  her  by  ill  usage  to  leave  him,  without  adequate  provi- 
sion, he  is  liable  for  her  necessaries,  and  sends  credit  with  her 
to  that  extent.1  The  wife's  faithfulness,  on  the  one  hand,  to 
her  marriage  obligations ;  on  the  other,  the  husband's  disregard 
of  his  own,  — these  afford  the  reason  of  the  above  rule  and  sug- 
gest its  proper  limitation,  and  yet  the  rule  appears  in  the  latest 
cases  to  assume  the  husband's  continuing  liability  unless  he  has 
good  ground  for  divorce.  The  wife  in  such  cases  has  an  au- 
thority ;  but  here  what  some  have  certainly  called  an  authority 
of  necessity.2  Or  we  may  say,  rather,  that  the  law,  by  a  fiction, 
infers  an  agency  without  asking  evidence  which  should  show 
authority  in  fact,  and  requires  the  husband,  under  these  circum- 
stances, to  maintain  his  wife  elsewhere. 

This  rule  suggests,  then,  three  cases  where  the  wife  may 
pledge  her  husband's  credit  when  they  are  living  apart:  the 
first,  where  he  abandons  her  ;  the  second,  where  he  turns  her 
out  of  doors  without  reasonable  cause ;  the  third,  where  his 
misconduct  compels  her  to  leave  him.  In  the  first  two  cases 
his  own  acts  impose  the  necessity,  and  her  conduct  is  involun- 
tary. But  in  the  third  her  conduct  might  be  considered  volun- 
tary, though  induced  by  his  misconduct ;  and  the  rule  here 
becomes  perplexing.  The  doctrine  of  Hovwood  v.  Hcffcr,  an 
old  case,  is  that  the  wife  is  not  justified  in  leaving  her  husband 
unless  she  has  been  driven  from  the  house  by  actual  violence 
or  apprehension  for  her  personal  safety  ;  and  in  this  case  the 
husband  was  held  not  to  be  liable,  since  she  had  quitted  his 
house  because  he  placed  a  profligate  woman  at  the  head  of  the 
tabic3  This  doctrine  lias  been  strongly  condemned  in  later 
times,  and  the  modern  cases  justly  regard  such  studied  insults 
as  capable  of  legal  redress.  If,  therefore,  the  husband,  by  his 
indecent  conduct,  renders  his  house  unfit  for  a  modest  woman 

1  2  Kent,  ''"in.  lie,  147;  2  Bright,         -  Soo  Pollock,  C.  15.,  in  Johnston  a, 
BTui  &  Wife,  10-12;  Snover  v.  Blair,  1     Sumner,  3  Hurl.  &  Nor.  261. 
Dutch.  94  ;  M:>\  liew  v.  Thayer,  s  Gray,         :i  •'*  Taunt.  421. 
172;  Eiler  v.  Crull,  99  [nd.  375. 

IDS 


CHAP.  111.]         WIFE'S    DEBTS    AND   CONTRACTS.  §  66 

to  share  it,  the  rule  now  is  that  she  may  leave  him,  and  pledge 
his  credit  elsewhere  for  her  necessaries.1 

Where  the  wife  is  justified  on  any  of  the  above  grounds  in 
living  apart  from  her  husband,  he  is  not  discharged  from  lia- 
bility by  showing  that  her  contract  was  in  fact  made  without 
his  authority  and  contrary  to  his  wishes.  Nor  will  his  gen- 
eral advertisement  or  particular  notice  to  individuals  not  to 
give  credit  to  his  wife  affect  the  case.2  The  legal  presumption 
must  prevail  for  the  wife's  protection.  And  in  all  such  cases, 
if  the  husband  seeks  to  escape  her  pledge  of  his  credit,  he 
should  not  only  provide  suitable  necessaries  through  persons  of 
his  own  choice,  but  make  that  provision  known  to  the  wife.3 

Nor,  in  such  cases,  can  the  husband  terminate  his  liability 
for  necessaries  supplied  his  wife  during  the  separation  by  a 
simple  request  on  his  part  that  she  shall  return.4  And  it  is 
clear  that  if  he  only  offers  to  take  her  back  upon  conditions 
which  are  unreasonable  and  improper,  his  liability  continues.5 
It  is  the  husband's  duty,  by  some  positive  act,  to  determine 
his  liability  ;  though  if  the  wife  voluntarily  returns,  his  liability 
for  necessaries  furnished  abroad  is  discontinued.  But  in  default 
of  any  amicable  arrangement,  he  must  institute  proceedings  in 
the  courts  with  divorce  jurisdiction.  And  until  some  such 
unequivocal  act  is  done,  a  person  making  a  proper  claim  in  a 
court  of  law  for  necessaries  supplied  to  the  wife  may  be  entitled 
to  recover  against  him.6  Where  the  wife  had  good  reasons  for 
leaving,  the  husband  is  not  discharged,  by  the  fact  of  her  subse- 
quent return,  from  liability  for  necessaries  furnished  during  her 
justifiable  absence.7 

But  the  wife  should  have  weighty  and  sufficient  cause  for 

1  Per  Lord  Ellenborough,  Liddlow  mond,  89  Ind.  553  ;  Pierpont  v.  "Wilson, 
r.  Wilmot,  2  Stark.  77;  1  Selw.  N.  P.  49  Conn.  450.  See  Black  v.  Bryan,  18 
298,  11th  ed. ;  per  Best,  C.  J.,  Houlis-    Tex  453. 

ton  v.  Smyth,  3  Bing.  127  ;  10  Moo.  482  ;  8  Preston  v.  Bancroft,  62  Vt.  86. 

2  Car.  &  P.  22 ;  Descelles  i.\  Kadmus,  8  4  Emery  v.  Emery,   1  You.   &  Jer. 

Clarke,  51;  Hultz  v.  Gibbs,  66  Penn.  501. 

St.  360  ;  Reynolds  v.  Sweetser,  15  Gray,  6  Reed  v.  Moore,  5  Car.  &  P.  200. 

78;  Bazeley  v.  Forder,  L.  R,  3  Q.  B.  6  lb.     See  Atkyns  v.  Pearce,  2  C.  B. 

559.  N.  s.  763. 

2  4  Esp.  41 ;  1  Selw.  N.  P.  298,  11th  7  Reynolds  v.  Sweetser,  15  Gray, 
ed. ;  2  Stra.  1214 ;  Watkins  v.  De  Ar-  78. 

109 


§  6Q  THE   DOMESTIC   RELATIONS.  [PART   II. 

leaving  her  husband,  in  order  to  be  permitted,  on  her  part,  to 
pledge  his  credit  abroad.  In  general,  the  same  facts  suffice  as 
justify  her  divorce  from  bed  and  board.1  But  where  she  leaves 
her  husband  without  sufficient  cause  and  against  his  will,  he 
is  not  liable  for  her  maintenance  elsewhere,  and  she  cannot 
bind  him ;  especially  if  the  person  furnishing  goods  knows 
that  cohabitation  has  ceased,  and  makes  no  further  inquiries.2 
Supposing  the  wife  leaves  voluntarily  and  without  sufficient 
cause,  against  her  husband's  wishes,  and  she  afterwards  returns 
to  her  husband,  is  he  bound  to  receive  her;  and  if  lie  refuse 
to  receive  her,  can  she  make  him  liable  for  debts  contracted 
thenceforth  for  necessaries  ?  The  current  of  authorities  is  in 
favor  of  such  a  position,  provided  she  conducted  herself  properly 
in  her  absence.3  Some,  however,  have  suggested  doubts  as  to 
this  doctrine  ;  for,  they  say,  since  the  wife  by  her  own  volun- 
tary act  discharged  the  husband  from  his  obligation  to  maintain 
her,  by  unnecessarily  quitting  his  house  without  his  consent,  it 
is  but  reasonable  to  say  that  his  liability  to  support  her  after- 
wards should  not  bo  revived  by  implication  without  his  express 
concurrence  in  consenting  to  his  wife's  return  to  his  protection, 
or  until  cohabitation  was  restored  by  mutual  agreement,  or  by 
the  sentence  of  a  court  with  appropriate  matrimonial  jurisdic- 
tion.4 This  is  fair  reasoning  on  general  grounds,  and  applies  a 
mutual  doctrine  to  husband  and  wife ;  but  the  courts  appear  to 
have  thought  otherwise. 

If,  however,  as  the  reader  may  have  inferred,  the  wife  elopes 
and  then  commits  adultery,  or  if  her  adultery  causes  separation, 

i  Brown  v.  Pattern,  3  Humph.  135;  Jut.  699 ;  Collins  v.  Mitchell,  5  Harring. 

Hancock  v.  Merrick,  10  Cush.  41;  Rea  3G9  ;  Bevier  v.  Galloway,  71    111.  517; 

v.  Dnrkee,   25    111.   503;    Schindel    v.  Harttman  v.  Tegart,  12  Kan.  177  ;  Oin- 

Schindel,  12  Mil.  294;  Stevens  v.  Story,  son  y.  Heritage,  45  Ind.  73;  Thome  v. 

43  Vt.  327  :   Barker  V.  Dayton,  28  Wis.  Nathan,  51  Vt.  520. 

367;  Thorpe  v.  Shapleigh,  07  Me.  235.  ;1  Manby  v.  Scott,  1  Sid.  129;  1  Mod. 

But  the  commencemenl  of  divorce  pro-  131  ;  Hindley  v.  Westmeath,  6  P>.  &  C. 

ceedings  for  cruelty  will  not  justify  per  200;    Howard  v.  Whetstone,    10  Ohio, 

r  leavingthe  house  and  pledging  365;  McCutchen  v.  McGahay,  llJohns. 

the  husband  •  credit  elsewhere.    Stur-  281. 

bridge  v.  Franklin,  L 60 Mass.  149.  *  See  2  Bright,  Tins.  &  Wife,   13. 

-  Brown    «     Midgett,   40    Vt.    08;  But  see  2  Bishop,  Mar.  &   Div.  5th  ed. 

Btherington  v.  Parrott,  2   Ld.  Raym.  §33.    See Schonler,  Hus. &  Wife, §  523, 

1006;  l  Sid  ISO;  Bailey  v.  Calcott,  4  as  to  divorce  remedies. 
110 


CHAP.  III.]         WIFE'S   DEBTS   AND   CONTRACTS.  §  60 

the  husband  becomes  relieved  from  her  support.  Her  crime 
ought  to  put  an  end  to  her  authority  to  bind  an  injured  spouse, 
and  it  does.1  In  such  case  his  refusal  to  take  her  back  again 
will  not  revive  his  obligation  to  maintain  her.  But  as  forgive- 
ness always  interposes  a  bar  to  legal  remedies  on  behalf  of  the 
injured  one,  he  becomes  once  more  liable  for  her  necessaries, 
where  he  voluntarily  receives  her  again  and  forgives  her.2  There 
are  cases  where  the  marital  rights  and  duties  become  more  con- 
fused. Supposing  the  wife  be  turned  out  of  doors,  or,  what 
amounts  to  the  same  thing,  be  forced  by  her  husband's  miscon- 
duct to  leave ;  and  she  afterwards,  being  beyond  that  shelter 
which  every  wife  needs,  commit  adultery;  is  he  then  relieved 
from  supporting  her  ?  In  Govier  v.  Hancock  it  was  held  that  he 
was,  even  though  his  own  adultery  caused  her  departure.3  This 
was  a  very  harsh  decision.  The  court,  however,  admitted  that 
necessaries  furnished  before  her  own  adultery  could  be  recovered 
from  her  husband.  And  in  a  subsequent  case  it  was  held  that 
adulterous  conduct  of  the  wife,  with  the  connivance  of  the  hus- 
band, or  at  least  without  such  a  separation  of  the  married  pair  as 
to  make  her  misconduct  notorious,  would  not,  per  se,  operate  as  a 
defence  and  protect  the  husband  from  liability.4  And  more  to  the 
point  is  a  case  decided  only  a  short  time  ago,  where  the  husband 
was  held  liable,  even  though  the  wife  had  been  found  guilty  of 
adultery  in  the  divorce  court ;  since  it  appeared  that  he  also  had 
been  found  guilty  of  adultery,  so  that  no  divorce  was  decreed.6 
Still  further  a  husband  has  been  held  liable  for  necessaries  where 
he  connived  at  his  wife's  adultery  and  then  turned  her  out  of 
doors,6  for  his  bad  faith  keeps  him  bound  to  her  marital  support. 
But  one  who  harbors  another  man's  wife  for  illicit  purposes  is  a 
wrong-doer,  and  cannot  recover  for  her  maintenance,  even  though 
she  had  fled  from  her  own  husband's  cruelty.7 

1  Morris   v.    Martin,    1    Stra.    647 ;  8  6  T.  R.  603. 

Mamvaring  r.  Sands,  2  Stra.  707 ;  Har-  4  Norton  v.  Fazan,  1  B.  &  P.  226. 

die  v.  Grant,  8  Car.  &P.  512;  Schouler,         5  Needham  v.  Bremner,  L.  R.  1  C.  P. 

Hus.  &  Wife,  §  113.  583. 

2  Harris  v.  Morris,  4  Esp.  41  ;  Robi-  6  Wilson  v.  Glossop,  19  Q.  B.  D. 
son  v.  Gosnold,  6  Mod.  171  ;  Holt  v.  379  (1887).  And  see  Ferren  v.  Moore, 
Brien,   4   B.   &  Aid.   252 ;    Quincy  v.  59  N.  H.  106. 

Quiucv,  10  N.  H.  272.  7  Almy  v.  Wilcox,  110  Mass.  443. 

Ill 


§67 


THE   DOMESTIC    RELATIONS. 


[PART  II. 


§  67.  "Wife's  Necessaries  where  Spouses  live  apart;  Subject 
continued.  — There  is  a  dictum  of  Lord  Holt  to  be  found  in  an 
old  case  (or  rather  in  the  reporter's  note),  which  sometimes  finds 
its  way  to  the  text-books ;  namely,  that,  if  a  husband  receives 
back  his  wife,  he  becomes  liable  for  her  debts  contracted  during 
the  whole  period  of  her  unauthorized  absence.1  This  seems  very 
unreasonable,  where  the  fault  was  on  her  part.  The  true  doc- 
trine is,  doubtless,  that  after  such  reconciliation  the  husband  is 
liable  upon  her  subsequent  contracts  only.  And  this  is  the  rule 
expressly  asserted  in  some  American  cases.2 

The  destitute  wife  of  a  lunatic  living  separate  from  her  in  an 
asylum  may  yet  pledge  his  credit  for  necessaries ; 3  though  not, 
of  course,  for  what  she  does  not  need,  as  where,  for  example,  she 
receives  sufficient  income  out  of  his  estate.4  She  cannot  pledge, 
it  might  seem,  where  he  is  banished  or  in  prison,  provided  the  law 
recognize  her  as  feme  sole ; 5  but  as  an  agent  of  necessity,  and 
to  compel  his  marital  obligation,  she  ought  to  be  permitted  to  do 
so  if  she  desires,  and  not  nnfrequently  does,  where  he  is  in  jail 
or  prison.6  If  the  wife  be  in  an  insane  asylum,  or  a  poor-house, 
the  husband  is  not  the  less  liable  for  her  support.7     But  not  where 


1  Robison  v.  GosnolJ,  6  Mod.  171. 
See  Bing.  Inf.  190,  n.,  Am.  ed. 

-  Williams  ».  Prince,  3  Strobh.  490; 
Reese  v.  Chilton,  26  Mo.  508;  Oinson 
v.  Heritage,  45  Ind.  73.  See  also  Chitty, 
Contr.  168;  Williams  v.  McGahay,  12 
Johns.  293. 

How  far  the  wife  can  contract  lia- 
bility for  necessaries  in  her  own  person, 
when  the  husband  is  discharged  by  her 
delinquency,  was  considered  in  the  case 
of  Marshal]  v.  Rutton,  8  T.  K.  547. 
Lord  Kenyon  observed  that  it  was  not 
i  jsary  consequence  of  the  deter- 
mination of  the  husband's  responsibil- 
ity that  the  wife  should  beat  liberty 
to  acl  as  a  feme  sole;  but  that  the 
contrary  was  the  truth,  and  that  any 

knowing     her    condition,    who 

to  i rn-1  her,  could  not  complain 
if  they  found  themselves  unable  to  sue 
licr.  Bat  these  remai  ks  are  rarj  cau- 
tion ! .  pul  ;  and  it,  seems  reasonable 
to  sup]  Bullei  Bxpresses 

112 


himself  in  the  case  upon  which  Lord 
Kenyon  commented,  that  the  wife  would 
become  liable  therefor;  certainly  if  she 
represented  herself  as  a  single  woman. 
Cox  v.  Kitchin,  1  B.  &  P.  339;  Child- 
ress v.  Mann,  33  Ala.  206  ;  McHenry  v. 
Davies,  L.  R.  10  Eq.  88.  See  §  170, 
note,  as  to  wife's  necessaries  under  mod- 
ern legislation. 

s  Heed  v.  Legard,  4  E.  L.&Eq.  523; 
Shaw  v.  Thompson,  16  Pick.  198. 

4  Chappell  v.  Nunn,  41  L.  T.  n.  s. 
287  :  Richardson   v.    Du  Bois,  L.   R.  5 
Q.  B.  51. 
i  5  Peeve,  Dom.  Rel.  86. 

6  See  Ahern  v.  Easterby,  42  Conn. 
546.  The  husband  is  liable  for  Ids 
wife's  necessaries  even  though  she  has 
been  declared  a,  feme  sole  trader.  Mark- 
ley  o.  Wartman,  9  Phila.  236. 

7  Wray  v.  Wray,  33  Ala.  187; 
David  v.  St.  Vincent  Institution,  til 
Fed.  277.  Such  necessaries  may  be  fur- 
nished by  an  individual   or  by  public 


CHAP.  III.]  WIFE'S    DEBTS   AND   CONTRACTS.  §  08 

she  is  in  prison.1  Aud  it  seems  that  under  circumstances  of 
misconduct  on  the  wife's  part,  the  husband  may  compel  her  to 
assent,  after  her  release  from  confinement,  to  live  separate  on  an 
allowance,  without  being  chargeable  for  her  support  as  one  who 
has  turned  his  wife  out  of  doors.2 

§  CS.  Wife's  Necessaries  where  Spouses  live  apart;  Mutual 
Separation.  —  But  besides  involuntary  separation,  there  is  the 
case  of  voluntary  separation  to  be  considered.  This  last,  now  so 
frequent,  the  law  tolerates,  but  does  not  favor.  The  rule  is,  that 
where  a  husband  and  wife  parted  by  mutual  consent,  and  a  suit- 
able allowance  is  furnished  the  wife,  the  husband  is  not  bound 
to  pay  any  bills  which  she  may  have  contracted  as  his  agent.3 
It  is  enough  that  the  separation  be  a  matter  of  common  reputa- 
tion where  he  resides.  But  to  this  allowance  two  things  are 
requisite :  first,  that  it  shall  be  really  sufficient  for  the  wife ; 
second,  that  it  shall  be  regularly  paid.  If  either  requirement  be 
wanting,  —  a  fact  which  the  seller  must  ascertain  at  his  peril,  — 
the  wife  is  not  confined  to  her  remedy  on  the  deed  of  separation, 
if  any,  but  may  pledge  her  husband's  credit.  As  to  the  first 
requirement,  the  question  is  not  whether  the  wife  consented  to 
accept  a  certain  allowance  as  sufficient  for  her  support,  but 
whether  it  be  actually  sufficient  in  the  opinion  of  the  jury.4 
As  to  the  second,  the  mere  covenant  or  contract  of  the  husband 
to  pay  separate  maintenance  will  not  discharge  him  from  liability 
for  necessaries ;  for,  as  was  observed  in  a  leading  case,  "  the 
common  law  does  not  relieve  any  man  from  an  obligation  on  the 
mere  ground  of  an  agreement  to  do  something  else  in  the  place, 
unless  that  agreement  be  performed."  5 

authorities  under  the  poor  laws.     160  v.  Downham,  5  Harring.  41 7 ;  Caney  v. 

Mass.  149.     And  see  Alna  v.  Plummer,  Patton,  2  Ashm.  140  ;  Baker  v.  Barney, 

4  Greenl.  258 ;  Wray  v.  Cox,  24  Ala.  8  Johns.  72.     This  doctrine  finds  recent 

337  ;  Brookfield  v.  Allen,  6  Allen,  585.  support  in  Alley  v.  Winn,  134  Mass.  77. 

1  2  Stra  1122  ;  Bates  v.  Enright,  42  But  cf.  Lawrence  v.  Brown  (1895),  Iowa. 
Me.  105.  4  Thompson     v.    Harvey,    4     Burr. 

2  Wray  v.  Wray,  33  Ala.  187  ;  Brook-  2177.  Hodgkinson  v.  Fletcher,  4  Camp. 
field  v.  Allen,  6  Allen,  585.  N.   P.  70 ;   Pearson  v.  Darrington,  32 

3  8  Car  &  P.  717  ;  1  Salk.  116 ;  1  Ld.  Ala.  227  ;  Liddlow  v.  Wilmot,  2  Star- 
Raym.  444 ;  Hindley  v.  Westmeath,  6  kie,  77  ;  Emmet  v.  Norton,  8  Car.  &  P. 
B.  &  C.  200;  Mizen  v.  Pick.  3  M.  &  W.  506. 

481  ;  Schouler,    Hus.    &   Wife,   §   117  ;  5  Nurse  r.  Craig,  5  B.  &  P.  148,  pet 

Calkins  v.  Long,  22  Barb.  97;  Kemp    Heath,  J.,;  Hindlev  v.  Westmeath,  6 B. 

8  113 


§  69  THE   DOMESTIC   RELATIONS.  [PART  II. 

If  wife  and  husband  part  by  mutual  consent,  and  there  is  no 
allowance  to  the  wife,  it  may  be  presumed  that  the  wife  has  the 
right  to  pledge  her  husband's  credit,  for  he  has  not  relieved  him- 
self of  his  marital  obligation.1  It  is  immaterial  whether  the  wife's 
allowance  be  secured  by  deed  or  not,  since  it  is  the  payment 
which  discharges  him.2  If  the  wife  makes  no  claim  for  further 
support,  nor  offers  to  return,  all  the  more  does  the  arrangement 
protect  him  from  liability.3 

But  on  account  of  the  increasing  favor  with  which  separation 
deeds  are  held,  allowance  of  maintenance  by  a  formal  separation 
deed  appears  under  the  latest  English  decisions  to  be  treated 
with  so  great  respect  as  to  be  deemed  conclusive  of  the  extent 
and  method  of  a  husband's  liability  for  his  wife's  support  dur- 
ing their  separation.4  An  arrangement  with  some  third  party 
may  thus  fulfil  the  needful  conditions  of  support  where  the 
spouses  live  apart. 

§  69.  Wife's  Necessaries  -where  Spouses  live  apart;  Presump- 
tions ;  Good  Faith.  —  It  has  generally  been  understood  that 
whenever  husband  and  wife  separate,  under  circumstances 
showing  misconduct  on  the  part  of  either,  the  presumption  of 
agency  changes  sides.  The  fact  of  their  living  apart  is  of  itself 
a  caution  to  all  who  hold  dealings  with  a  married  pair.  While 
they  cohabit  it  is  usually  for  the  husband  to  show  a  want  of 
authority ;  when  they  cease  to  cohabit  the  seller  must  prove 
authority ;  that  is  to  say,  he  must  prove  that  the  wife  was  in 
need  of  the  goods,  that  the  husband  failed  to  supply  her,  and 
that  the  wife  was  not  at  fault.  The  burden  is  here  upon  the 
dealer,  in  short,  to  make  out  a  justifiable  cause  for  supplying 


&   C   200;    Loctwood   v.   Thomas,    12  eumstances  for  procuring  the  mainte- 

Johus.  248;  Kimball  y.  Key es,  11  Wend,  nance  which  it  continues  the  husband's 

:>;.>,.  duty  to  render.     Lush,  J.,  in  this  case 

1    |;<j<>  <•.  Ross,  'i'»  111.  569.  seems  to  rest  the  wife's  general  right 

-  rlodgkinson  '•.   Fletcher,  4  Camp,  to  pledge  her  husband's  credit  too  ex- 

70;  Emerj  v.  Neighbour,  2  rlalst.  142;  clusively  upon  the  doctrine  of  agency. 

II, ,l,l.i,  v.  Cope,  -1  Car.  X.    K.  t:i7.      But  Sce§  70  post ;  c.  17;  62  Vt.  123. 

.,  i    |.  ,,  .■    , .  1 1 ut t on,  :;  Esp.  ii"<:».  Where  husband  and  wife  have  sepa- 

:;  Alley  v.  Winn,  134  Mass.  77.  rated  and  the  wife  lias  adequate  means 

4  Eastland  '■.   Burchell,   L.  R.  8  Q.  of  her  own  under  an  antenuptial  settle- 

I',.  D.   132.     Qu.  whether  tin;  wife  has  ment,  the  husband  semble  is  not  liable. 

any  remedy  afforded  her  under  such  cir-  Hunt  v.  Hayes,  64  Vt.  8'J. 
Ill 


CHaP.  III.]         WIFE'S   DEBTS   AND   CONTRACTS.  §  70 

without  actual  authority  from  the  husband.  Prima  facie, 
therefore,  a  wouiau  living  apart  from  her  husband,  upon  either 
voluntary  or  involuntary  separation,1  has  no  authority  to  bind 
him.2  This  contrast  of  presumptions  is  further  subject  to  the 
new  English  doctrine  lately  commented  upon,  which  seems  to 
put  all  new  tradesmen  on  their  guard  in  their  first  dealings 
with  a  married  woman.3  Where  the  husband  is  merely  absent 
from  home  for  temporary  purposes,  the  wife's  presumed 
authority  continues.*  And  where  the  fact  of  separation  is  not 
commonly  known,  or  where,  by  occasional  visits,  the  husband 
keeps  up  the  appearance  of  cohabitation  with  his  wife,  he  has 
generally  been  considered  prima  facie  liable  as  before;5  and 
such  indulgence  is  due  particularly  to  former  dealers  who  have 
no  notice  of  a  revocation  of  the  wife's  agency  ;6  though  notice 
of  an  allowance  is  notice  of  his  dissent  to  the  wife's  contracts.7 
He  may  agree  with  the  wife's  tradesman,  while  living  apart 
from  her,  that  the  goods  supplied  shall  not  be  charged  to  him  ; 
and  to  such  special  agreement  the  tradesman  will  be  held.8 

Courts  will  always  regard  the  rule  of  good  faith  in  matters 
relative  to  the  wife's  necessaries.  Thus,  if  the  husband  and 
wife  be  living  apart  without  the  husband's  fault,  and  he  wishes 
to  terminate  his  liability  by  requesting  her  to  return  home, 
his  conduct  must  show  sincerity ;  though,  if  his  intentions  are 
bona  Jlde,  and  he  makes  suitable  provision  at  his  own  home, 
which  is  a  proper  home  for  her,  the  wife  forfeits  all  claim  to 
further  support  by  refusing  to  return.9 

§  70.  Wife's  Necessaries  ;  Summary  of  Doctrine.  —  The  com- 
mon-law  doctrine,  as  we  have  seen,  makes  the  ground  of  the 


1  Johnston  v.   Sumner,   3    Hurl.    &  3  Supra,  §  63  ;  Debenham  v.  Mellon, 
Nor.  261,  per  Pollock,  C.  B.,  and  au-  L.  R.  5  Q.  B.  D.  394. 

thories  there  commented  upon.  4  Frost  v.  Willis,  13  Vt.  202. 

2  Etherington  t?.  Parrott,2Ld.  Kaym.  5  Rawlins  v.  Vandyke,  3  Esp.  250, 
1006 ;  Montague  v.  Benedict,  3  B.  &  C.  per  Lord  Eldon. 

631  ;  Walker  v.  Simpson,  7  W.  &  S.  83  ;  6  Anthony  v.  Phillips,  17  R.  I.  188. 

Mitchell  v.  Treanor,  11  Ga.  324;  Rea  v.  7  Hinton   v.   Hudson,    Freem.   248; 

Durkee,  25  III.  503 ;  Schouler,   Bus.  &  Kimball  v.  Keyes,  1 1  Wend.  33. 
Wife,  §  119  ;  53  N.  J.  L.  516;  Stevens  8  Dixon  v.  Hurrell,  8  Car.  &  P.  717. 

v.    Story,   43   Vt.   327 ;    Sturtevaut   v.  9  Walker   v.   Laighton,    1 1    Foster, 

Starin,   19  Wis.  268;    132  Mass.  181;  111.    And  see   Cartwright  v.   Bate,  1 

38  Neb.  304.  Allen,  514. 

115 


§  70  THE   DOMESTIC   RELATIONS.  [PART    II. 

husband's  liability  for  bis  wife's  necessaries  essentially  that 
of  agency.  This  agency  is  stated  as  an  agency  of  necessity 
where  a  deserving  wife  stands  in  want  of  supplies  because, 
of  her  husband's  misconduct.  But  in  truth  such  necessity 
transcends  all  the  analogies  of  an  authorized  representation, 
and  inasmuch  as  the  wife  has  no  property  and  is  legally  de- 
pendent on  her  husband,  a  right  to  supply  her  wants  upon 
his  credit  is  inferred  from  the  nature  of  her  situation.  When 
both  spouses  live  together,  the  wife  may  pledge  her  husband's 
credit  for  necessaries,  unless  he  supplies  them  otherwise,  and 
so  performs  his  duty  after  his  own  method ;  if  they  separate, 
his  liability  continues  commensurate  with  his  obligation,  so 
that  she  can  only  pledge  his  credit  when  the  fault  was  not  her 
own;  but,  being  justified  in  her  conduct,  the  conjugal  right 
to  necessaries  is  perfect,  and  consecpaently  enforceable  in  this 
manner,  unless  he  performs  his  duty  after  his  own  method. 
The  discrepancy  of  the  cases  relates  chiefly  to  presumptions  in 
favor  of  the  person  who  supplies  the  necessaries ;  and  here,  as 
we  have,  seen,  the  latest  decisions  leave  it  in  doubt  how  strong 
a  presumption  cohabitation  as  husband  and  wife  furnishes  by 
itself.  Formerly  it  was  thought  that  private  arrangements 
between  husband  and  wife,  where  they  lived  together,  could  not 
be  set  up  against  the  seller  who  had  no  notice  thereof;  but 
latterly  the  English  inclination  has  been,  as  we  have  seen,1  to 
limit  the  implied  agency  of  the  wife,  during  cohabitation,  to 
those  whose  dealings  have  already  been  recognized  by  the  hus- 
band, and  who  therefore  ought  to  have  notice  of  revocation ; 
which  rule  of  course  narrows  down  the  presumption.  What- 
ever presumption  of  authority  may  be  inferred  from  cohabita- 
tion, separation  raises  the  counter-presumption  that  the  wife 
lias  no  authority  to  pledge  her  husband's  credit.  Upon  the 
whole,  to  reconcile  the  earlier  ami  later  decisions,  the  wife's 
right  of  procuring  necessaries  on  her  husband's  credit  may  be 
deduced  from  these  two  combined  considerations:  (1)  That 
where  the  husband  proves  remiss  in  furnishing  needful  support, 
the  wife  lias  tin;  right  to  compel  such  support  by  pledging  his 
credit,  whether  they  cohabit  or  dwell  apart,  so  long  as  miscon- 

1  Supra,  §  63. 

116 


CHAP.  III.]         WIFE'S   DEBTS   AND   CONTPwACTS.  §  71 

duct  on  her  part  has  not  absolved  him  from  the  conjugal  duty, 
—  this  rule  of  compulsion  taking  largely  the  place,  in  modern 
times,  of  the  old  remedies  formerly  pursued  in  the  ecclesiastical 
courts ;  (2)  That  any  wife  may  be  the  agent  of  her  husband 
and  bind  him  to  the  extent  of  her  authority,  like  other  repre- 
sentatives. In  short,  the  rule  of  agency  as  to  wife's  necessaries 
is  carried  far  enough  in  actual  practice  to  make  that  agency  a 
fiction  for  the  sake  of  a  wife's  self-protection  against  her  un- 
faithful spouse.1 

We  may  add  that  the  husband's  express  contract  with  others, 
or  his  express  promise  or  express  sanction  comes  in  aid  of  such 
legal  inference  concerning  his  liability  for  supplies  furnished 
his  wife  as  may  be  drawn  from  any  of  the  matrimonial  situa- 
tions which  we  have  considered.2 

§  71.  Wife's  Necessaries;  Miscellaneous  Points.  —  Marriage 
de  facto,  or  reputed  marriage,  is  always  sufficient  to  charge  the 
husband  with  his  wife's  necessaries.  There  seem  to  be  three 
reasons  why  this  should  be  so :  one,  that  a  tradesman  cannot 
be  expected  to  inquire  into  such  matters ;  another,  that  agency 
binds  any  principal ;  the  third,  that  it  is  just  that  a  man  who 
holds  out  a  woman  to  society  as  his  wife  should  maintain  her 
as  such.  Hence  an  agency  is  to  be  inferred  wherever  there  is 
cohabitation  of  parties  as  husband  and  wife ;  though  not,  it 
would  appear,  where  the  cohabitation  is  irregular  and  calculated 
to  raise  a  different  impression,  and  strong  proof  of  actual  au- 
thority bestowed  is  not  furnished.3 


1  That  agency  is  not  the  full  meas-  that  the  wife   is  permitted  to  maintain 

sure   of  the  wife's  power  to  bind  her  her  rights  against   an   unfaithful  hus- 

hushand  for  what  she  needs  is  further  band    in  self-protection.     The  English 

seen  in  the  decisions  upon  the  point  of  courts  included  articles  of  peace  against 

a  wife's  legal  expenses  already  noticed,  the  husband  under  necessaries.     Supra, 

Supra,   §  61,    n.     Here  there   is  some  §  61,  n.      But  they  stopped  short   for- 

confusion  in  the  decisions;  but  a  dispo-  merly  at  indictment  of   the  husband  for 

sition  very  clear  is  shown  by  the  courts  assault.     Supra.  §  61,  n. 
to  allow  the  wife  in  numerous  instances  2  See  e.  g.   Daubney   v.   Hughes,  60 

to  prosecute   or  defend  in  furtherance  N.  Y.  187.     Any  notice  intended  to  ter- 

of  her  marital  rights,  even  though  it  he  minate  the  continuance  of   an  express 

against  the   husband   himself.     Incon-  contract  must,  in  order  to  be  effectual, 

sistently  enough,  the  fiction  of  agency  be  appropriate  thereto.     lb.     And  see 

as   to   necessaries   has   been   here   em-  Mickelberry  v.  Harvey,  58  Ind.  523. 
ployed ;  but  the  true  ground  is  rather  3  2   Esp.    637  ;    and   see    1    Greenl. 

117 


§  71  THE   DOMESTIC   RELATIONS.  [PART   II. 

An  adult  husband  is  bound  on  the  contract  of  his  minor 
wife  for  necessaries.1  And  a  minor  husband  is  liable  for  neces- 
saries furnished  his  wife,  whether  she  be  minor  or  adult.2  The 
ordinary  rules  of  husband  and  wife,  therefore,  apply  so  far  as 
such  necessaries  are  concerned.  If  old  enough  to  contract 
marriage,  an  infant  is  presumed  old  enough  to  pay  for  his  wife's 
board  and  lodging  as  well  as  his  own.3  But  with  regard  to  his 
wife's  general  contracts,  it  would  seem  that  infancy,  which  in- 
capacitates one  from  making  contracts  in  person,  also  disquali- 
fies him  from  employing  an  attorney. 

As  an  agent  duly  authorized,  the  wife  may  doubtless  pledge 
her  husband's  credit  for  the  necessaries  of  the  children,  as  well 
as  her  own.  But  upon  the  doctrine  of  presumptions  and  an 
implied  authority  from  him  to  do  so,  the  common  law  is  more 
reserved.  "  Family  necessaries "  is  an  expression  of  our  later 
statutes  which  indicates  a  growing  favor  in  that  direction,  and 
modern  custom  may,  of  course,  extend  the  implied  scope  of  an 
agency  beyond  earlier  usage.4 

But  as  the  obligation  of  a  husband  to  support  does  not  ex- 
tend beyond  his  wife  and  own  children,  nor  always  to  step- 
children, a  wife  cannot  ordinarily  make  a  binding  contract  to 
support  her  own  parent,  brother,  sister,  or  near  relatives,  either 
at  his  expense  or  her  own,  since  she  is  neither  sui  juris  nor 
presumably  his  agent  for  that  purpose.5 

Policy  has  regarded  parental  claims  for  necessaries  furnished 
to  a  wife  with  great  distrust.  Such  claims  may  doubtless 
accrue  under  an  express  contract.6  But  the  law  will  not  ordi- 
narily imply  a  contract,  as  against  a  son-in-law,  to  pay  his 
wife's  board  while  staying  at  her  father's  house.  Some  of  the 
latest  cases,  nevertheless,  imply  a  promise  on  the  husband's 
part  to  pay  his  wife's   board,  where  she  goes  to  her  parent's 

Evid.  §207;  1  Camp.  245 ;  Jewsbury  «.  f>s7  ;    Commonwealth   v.   Graham,    157 

Newbold,  40  B.  L.  &  Eq.  518;  Munroe  Mass.  7:5. 
1    De  Chemant,  4  Camp.  215  ;  Schooler,         ;i  lb. 

Wife,  §  122;  89  CaL  4)0.  <  See  §  170,  note.    And  see  Cook  ». 

1  Nicholson  v.  Wilborn,  13  <Ja.  407.  Ligon,  54 Miss.  368;  Powers  v.  Russell, 

-('.inline    v.   Phillips,    5    Earring.  26  Mich.  179. 
428.     And  see  Rush  v.  Lindsey,  14  <ia.  6  Olney  v.  Howe,  89  111.  556. 

6  Daubney  v.  Hughes,  60  N.  Y.  187. 

118 


CHAP.    III.]        WIFE'S   DEBTS   AND   CONTRACTS.  §  72 

house  upon  a  mutual  understanding  that  she  may  stay  there 
indefinitely,  the  spouses  having  quarrelled.1  With  the  grow- 
ing laxity  of  the  marriage  union,  the  parent's  intervention  on  a 
daughter's  behalf  against  her  husband,  with  the  view  of  pro- 
curing her  divorce,  and  boarding  her  at  the  husband's  cost 
meantime,  is,  unhappily,  becoming  far  more  common  than  for- 
merly, and  more  readily  encouraged  by  the  courts. 

The  reader  has  perceived  that  the  claim  for  a  wife's  neces- 
saries involves  two  elements  :  articles  furnished  must  be  of  the 
suitable  class,  such  as  food,  dress,  or  medical  attendance ;  and, 
furthermore,  of  that  class  the  wife  must  be  destitute  of  such 
supply  as  befits  her  condition  and  the  means  and  station  of  her 
husband.  Hence  a  blending  of  a  law  and  fact ;  and  hence,  more- 
over, much  confusion  in  laying  down  the  rules,  though  a 
tradesman  has  not  always  to  inquire  strictly.  Where  one  has 
supplied  the  wife  with  articles,  some  of  which  are  necessaries 
and  some  are  not,  some  of  which  were  rightly  furnished  her 
and  some  of  which  were  not,  he  can  yet  recover  for  the  neces- 
saries, or  for  what  he  rightly  furnished.2  But  on  the  other 
hand,  one  cannot  furnish  articles  which  were  not  necessaries 
and  not  suitable,  and  recover  a  fraction  of  their  value  on  the 
plea  that  they  might  have  answered  the  purpose  of  other  arti- 
cles which  would  have  been  necessaries.3 

§  72.  Wife's  General  Agency  for  her  Husband.  —  The  wife 
may  bind  her  husband  for  other  contracts  than  those  for  neces- 
saries, where  an  agency  in  the  premises,  express  or  implied, 
can  be  shown.  The  natural  incapacities  of  her  sex  superadded 
to  those  of  the  marriage  state;  the  practical  difficulties  which 
persons  dealing  through  such  an  agent  must  encounter,  par- 
ticularly where  they  find  she  has  exceeded  her  authority,  and 
yet  cannot  hold  her  liable  in  person ;  her  own  exposure  to  fraud, 
deceit,  and  coercion,  —  all  these  combine  to  render  the  wife  in 
important  negotiations  an  undesirable  business  representative ; 
and  cases  of  this  sort  come  rarely  before  the  courts.     As  to 

1  Burkett  v.  Trowbridge,  61  Me.  251  ;         2  Eames  v.  Sweetser,  101  Mass.  78; 
Daubney   r.    Hughes,    60  N.    Y.    187;     Roberts  v.  Kelley,  51  Vt.  97. 
Schouler,  Hus.  &  Wife,  §  124.     As  to         8  Thorpe  v.  Shapleigh,  67  Me.  235. 
wife's  own  claims,  raising  funds,  &c, 
see  Schouler,  Hus.  &  Wife,  §  125. 

119 


§  72  THE   DOMESTIC    RELATIONS.  [PART   II. 

matters  not  relating  to  the  household  or  the  family  necessaries, 
a  wife  has  no  power  to  bind  her  husband  unless  actual  authority 
has  been  expressly  conferred  or  may  be  implied  from  circum- 
stances.1 But  the  wife  may  be  delegated  an  attorney,  even 
under  a  sealed  instrument.2  And  on  principle  there  is  little 
reason  to  doubt  her  capacity  to  bind  her  husband  in  all  general 
transactions  where  he  has  given  an  express  authority.  So,  too, 
her  agency  may  be  inferred  from  his  acts  and  conduct  respect- 
ing her ;  and  the  general  rule  applies  that  such  agency  is  to  be 
measured  by  the  scope  of  the  usual  employment;3  and  further, 
that  those  regularly  dealing  upon  the  sanction  of  an  agency 
ought  to  have  due  notice  when  the  agency  is  revoked.4  It  is 
by  virtue  of  such  an  extended  agency  that  we  find  a  married 
■woman  enabled  frequently  to  pledge  her  husband's  credit  beyond 
all  ordinary  rules  as  to  a  wife's  necessaries.  The  usual  cases  in 
which  a  wife  binds  the  husband  on  contracts  not  for  necessaries 
may  be  reduced  to  two  classes ;  the  one  where  the  nature  of  his 
employment  is  such  that  the  wife  is  expected  to  share  in  it ;  the 
other  where  he  is  absent  from  home  and  some  one  must  carry  on 
the  household  and  small  business  matters.5 

Thus  it  is  held  that  where  a  husband  permits  his  wife  to 
carry  on  a  certain  business  in  his  name,  and  to  draw  in  his 
name  checks  and  notes  to  be  used  in  the  course  of  the  business, 
she  cannot  make  him  liable  as  surety  for  loans  to  third  persons, 
or  upon  accommodation  paper,  merely  because  of  such  an 
agency.6  And  where  her  agency  extends  only  to  the  perform- 
ance of  certain  specific  acts  of  a  general  transaction,  she  cannot 
bind  liim  by  her  acts  and  admissions  respecting  other  matters 
connected  with  the  general  transaction.7  A  wife  is  fairly  the 
husband's  implied  agent  for  engaging  the  usual  menial  servants.8 

1  . Foil's   »•.  Wocher,  90  Ky.  230;  40  4  As  where  the  parties  separate,  hut 

111.  App.  380.  the  dealer  has  no  knowledge  of  the  fact. 

oodwin  v.  Kelly,  12  Barb.  194.  23  Ore.  327. 

'■'  ''ox    r.    Huffman,    4    Dev.  &    Batt.  •"'  See     this     doctrine     discussed    at 

180;  Mackinlej  v.  McGregor,  3  Whart.  length,  with  citation  of  cases  in  Schon- 

869;  Camelin  v.  Palmer  Co.,  10  Allen,  ler,  Hus.  &  Wife,  §§  127-130. 
S39;  Ruddock  r.  Marsh,  38  E.L.  &  Eq.         r>  Gnlick  r;.  Grover,  2  Vroom,  182; 

515 ;  Pickering  v    Pickering,  6  N    II.  4  Vroom,  403. 
124;  Gray  v.  Ota's,  n  Vt.  628;  Miller         "  Goodrich  v.  Tracy,  43  Vt.  314. 
■     Delamater,    12    Wind    433;   Mickel-  H  Wagner  v.  Nagel,  33  Minn.  348. 

berry  v.  Hai  fad   523. 

L20 


CHAP.  III.]         WIFE'S    DEBTS    AND   CONTRACTS.  §  72 

The  husband  may,  by  suitable  conduct,  make  his  wife  his  agent 
for  receiving  settlement  of  claims  due  him  while  absent;1  or 
for  employing  legal  assistance  as  incidental  to  managing  his 
affairs.2  The  wife  may  be  her  husband's  agent  as  to  his  real 
estate,  not  only  for  the  purpose  of  collecting  rents  and  making 
small  repairs,  but  in  the  more  important  transactions.  But  as 
deeds  and  written  instruments  are  here  commonly  requisite, 
and  formalities  must  be  followed,  little  can  be  left  to  inference. 
Such  authority  presupposes  usually  a  husband's  long  absence. 
Thus  the  management  of  a  farm  in  a  husband's  absence,  with 
the  care  of  the  stock,  is  not  unfrequently  intrusted  to  the  wife.3 
It  is  not  to  be  presumed  that  a  wife  can  revoke  her  husband's 
license -on  his  premises,  given  to  a  third  person,4  nor  grant  an 
irrevocable  license  thereon.5  The  wife  may  represent  her  hus- 
band, not  only  in  the  general  management  of  his  own  lands,  so 
as  to  bind  him,  but,  under  certain  circumstances,  with  reference 
to  her  real  estate  in  which  he  has  the  usual  marital  rights,  or 
lands  owned  partly  by  her  and  partly  by  him.6  But  a  wife  is 
not,  simply  because  she  is  a  wife,  authorized  by  implication  to 
sell  or  dispose  of  her  husband's  general  personalty,  although  it 
might  consist  of  a  sewing-machine  or  a  piano  such  as  she  her- 
self used  exclusively.7 

Eatification  by  the  husband  is  not  essential  where  the  scope 
of  the  wife's  agency  was  sufficient  without  it ; 8  but  it  cures  acts 
of  doubtful  authority.  The  wife's  sale  or  gift  of  her  husband's 
personal  property,  even  without  authority,  or  her  purchase  on 
his  behalf,  may  be  confirmed  by  his  subsequent  acts  amounting 
to  ratification ;  and  one  mode  of  ratification  is  to  accept  know- 
ingly the  benefits  of  her  transaction.9     Acts  done  by  the  wife 

1  Stall  v.  Meek,  70  Penn.  St.  181.  8  See  McAfee  v.  Robertson,  41  Tex. 
See  Meader  v.  Page,  39  Vt.  306.                  355. 

2  Buford  v.  Speed,  11  Bush,  338.  9  Dunnahoe    v.    Williams,    24   Ark. 
8  Chunot  v.  Larson,   43  Wis.    536;     264;    Mickelberry  v.   Harvey,    58   Ind. 

McAfee  v.  Robertson,  41  Tex.  355.  523  ;  Pike  v.  Baker,  53  111.  163  ;  Shaw 

4  Kellogg  v.Robinson,  32  Conn.  335.  v.   Emery,   38   Me.   484;    supra,   §   64. 

5  Nelson  v.  Garey,  114  Mass.  418.  Even  a  trifling  gift  from  the  wife  by 

6  Cheney  v.  Pierce,  38  Vt.  515;  way  of  charity  has  been  upheld,  though 
Dresel  v.  Jordan,  104  Mass.  497.  without     the     husband's     permission. 

7  Wheeler  Man.  Co.  v.  Morgan,  29  Spencer  v.   Storrs,  38  Vt.   156. 
Kan.  519. 

121 


§  7-1  THE   DOMESTIC   RELATIONS.  [PART   II. 

in  relation  to  her  husband's  property  without  authority  should 
of  course  he  promptly  disavowed  by  him  within  a  reasonable 
time,  it'  he  wishes  to  escape  responsibility.1  Nor  can  a  husband 
stand  by  and  see  his  wife  use  the  proceeds  of  a  sale  of  his 
property  sold  by  her  with  his  knowledge,  and  afterwards  re- 
claim the  property.2 

§  73.  Effect  of  Marriage  of  Debtor  and  Creditor.  —  A  debt  or 
obligation  due  a  woman  is  extinguished,  not  suspended,  at 
common  law,  by  her  marriage  with  the  debtor  or  obligor,  and 
she  cannot  recover  the  same  against  him  or  his  estate  after  the 
relation  is  ended.3  So,  too,  where  the  woman  is  debtor  and 
marries  the  creditor,  the  debt  against  her  is  discharged.  These 
doctrines  are  subject  to  the  exception  that  this  must  not  affect 
the  rights  of  third  parties.4 


CHAPTER  IV. 


EFFECT  OF   COVERTURE   UPON   THE   WIFE'S   INJURIES   AND 
FRAUDS. 

§74.  General  Principle  Stated. — Frauds  and  injuries  may 
have  been  committed  by  the  wife ;  or  they  may  have  been 
committed  upon  the  wife.  Again,  they  may  have  been  com- 
mitted before  coverture ;  or  they  may  have  been  committed 
(luring  coverture.  Once  more,  they  may  have  reference  to  the 
person,  constituting  a  bodily  injury,  such  as  assault  and  bat- 
tery, or  an  injury  to  the  character,  such  as  slander;  or  they 
may  have  reference  to  property.  But  in  any  event,  so  far  as  the 
fraud  or  injury  is  made  the  subject  of  a  civil  suit,  the  general 
principle  of  the  wife's  disability  remains  the  same;  namely, 
that  tin-;  husband  compensates  or  receives  the  compensation. 

1  Hill  v.  Sewald,  53  IVnn.  St.  271.        of  such  a  debt,  or  its  evidence  before 

2  Delano  V.  Blanchard,  52  Vt.  578;  marriage,  cf.  Gnptil  v.  Home,  63  Me. 
Hull  r.  Price,  50  Mo. 228.  405;    Long   v.    Kinney,    49    Ind.   235. 

«  Smiley  v.  Smiley,  1*  Ohio  St.  648.      And  see  Trice  v.  Price*  L.  R.  11  Ch.  D. 

4  Ah  to  indorsement  or  assignment     103. 

122 


CHAP.  IV.]  WIFE'S   INJURIES   AND   FRAUDS.  §  75 

§  75.  Torts  by  the  Wife  ;  Husband  and  Wife  sued  together, 
or  Husband  alone  ;  Presumption  of  Coercion,  &c.  —  We  have 
seen  that  one  spouse  is  not  criminally  answerable  for  the  other.1 
But  as  to  private  wrongs  or  torts,  the  general  rule  of  law  is  that 
the  husband  is  liable  for  the  frauds  and  injuries  of  the  wife, 
whether  committed  before  or  during  coverture ;  if  committed 
under  his  coercion  or  by  him  alone,  he,  and  he  alone,  is  liable ; 
otherwise,  both  are,  for  the  time  being,  liable.2  Where  the  fraud 
or  injury  is  committed  in  his  company  and  by  his  order,  coercion 
is  presumed,  and  the  husband  becomes  prima  facie,  the  only 
wrong-doer;  and  where  committed  without  his  order,  and  in 
his  absence,  or  voluntarily  in  his  presence,  the  wife  is  in  reality 
the  offending  party,  while  the  husband  has  become  responsible 
for  her  acts  by  reason  of  her  coverture.  In  the  latter  class  of 
cases  the  husband  is  properly  joined  with  his  wife  in  the  suit ; 
for,  if  the  wife  alone  were  sued,  his  property  might  be  seized 
without  giving  him  an  opportunity  for  defence ;  and  if  the  hus- 
band alone  were  sued,  he  would  become  chargeable  absolutely. 
In  the  former  class  of  cases  the  husband  should  be  sued  alone.3 
Where  the  tort  is  committed  by  both  spouses,  and  the  wife  does 
not  act  by  coercion,  both  husband  and  wife  may  be  jointly  sued.4 

This  presumption  of  coercion,  too,  is  much  the  same  in  civil 

1  Supra,  §  49.  see,  as  to  the  option  given  by  English 

2  2  Kent,  Com.  149;  Bing.  Inf.  256,  statute  of  1882,  Seroka  v.  Kattenburg, 
257;  Angel  v.  Felton,  8  Johns.  149;  17  Q.  B.  D.  177.  The  present  policy- 
Gage  v.  Reed,  15  111.  403  ;  Carl  v.  Won-  in  various  States  is  to  exempt  the  hus- 
der,  5  Watts,  97  ;  Whitman  v.  Delano,  band  for  his  wife's  tort  where  he  was 
6  N.  H.  543 ;  Gray  v.  Thacker,  4  Ala.  not  preseut  and  did  not  participate.  32 
136;  McKeown  v.  Johnson,  1  McCord,  Kan.  409.  As  to  liability  under  the  New 
578 ;  Benjamin  v.  Bartlett,  3  Miss.  86  ;  York  civil  damage  act,  where  liquors 
Wright  v.  Kerr,  Addis.  13 ;  Cassin  v.  are  sold  by  the  husband  in  a  building 
Delany,  38  N.  Y.  178;  Ball  v.  Bennett,  owned  by  the  wife,  see  87  N.  Y.  493.' 
21  Inch  427  ;  Marshall  v.  Oakes,  51  Me.  See  further  as  to  injury  as  affected  by 
308;  Clark  v.  Bayer,  32  Ohio  St.  299;  husband's  or  wife's  premises,  115  Mo.  1 , 
44    Ark.  401;    Flesh  v.  Lindsay,    115  Strouse  v.  Leipp  (1894),  Ala. 

Mo.  1.  3  Park  v.  Hopkins,  2    Bailey,  411  ; 

As  to  modern  statutory  changes  in  Matthews  v.  Fiestel,  2  E.  D.  Smith,  90; 

this  doctrine,  see  §170,  n.     A  statute  Jackson   v.  Kirby,  37   Vt.  448;  58  Vt. 

will  not  be  deemed  to  exempt  a  hus-  323. 

band    from    the   common-law   liability  *  12  Mod.  246;  Vine  v.  Saunders,  5 

for  his  wife's  torts  unless  it  is  explicit.  Scott,  359;  Marshall  v.  Oakes,  51    Me. 

Quick   v.   Miller,    103    Fenn.    St.    67;  308;    Gray,  C.  J.,  in  Handy  v.  Foley, 

Holtz  v.  Dick,  42  Ohio   St.  23.     And  121  Mass.259. 

123 


§  75  THE   DOMESTIC   RELATIONS.  [PART   II. 

as  in  criminal  offences.1  It  is  said  by  Chancellor  Kent  that  a 
wrong  committed  by  the  wife  "  in  company  with  "  her  husband, 
or  "by  his  order,"  renders  the  husband  alone  liable;  but  this 
statement  is  too  general,  and  should  be  limited  to  the  case  of 
her  acting  by  his  coercion.2  It  is  said  that  the  privilege  of  pre- 
sumptive coercion  extends  to  no  other  person  than  a  wife,  not 
even  to  a  servant.3  The  presence  of  the  husband  and  his  direc- 
tion should  usually  be  concurrent,  in  order  to  amount  to  coercion  ; 
and  the  presumption  of  a  wife's  coercion  in  a  tort  is,  of  course, 
not  conclusive,  but  may  be  controlled  by  evidence  of  the  facts.4 

As  to  private  wrongs  the  question  occurs,  why  should  the  hus- 
band be  made  to  stand  in  the  wife's  place  where  the  offence  is 
considered  against  an  individual,  any  more  than  when  it  is 
between  herself  and  the  State  ?  This  seems  to  be  the  true  answer, 
as  in  case  of  her  debts  dum  sola;  namely,  that  the  husband  adopts 
her  and  her  circumstances  together  ;  that  he  takes  her  fortune,  if 
she  has  one,  and  assumes  all  possible  liabilities  therefrom. 

This  statement  suggests  that  the  husband's  liability  is  after  all 
a  limited  one,  where  he,  in  the  first  instance,  was  free  from 
wrong  ;  that  is  to  say,  that  the  death  of  the  wife  before  the  recov- 
ery of  damages  puts  an  end  to  his  liability  altogether.  This  is  cor- 
rect, not  only  on  the  principle  announced  in  the  case  of  the  wife's 
debts  dum  sola,  but  because  wrongs,  being  personal,  die  with  the 
person,  which  last  is  the  common  explanation  of  this  rule.  If 
the  husband  dies  before  damages  are  recovered  in  the  suit,  the 
wife  alone  remains  liable.5  So  it  would  seem  that  the  common 
law  recognizes  a  liability  on  her  part  which  continues  through 
the  marriage  relation  ;  coverture  operating,  however,  so  as  to  sus- 
pend the  remedy  against  the  married  woman,  and  to  bring  in  as 
a  joint  party  the  custodiau  of  her  fortune.6 

1  Supra,  §  50.  be   set   up   in   defence.     See   Clark   v. 

2  Gray,  C.  J.,  in  Handy  v.  Foley,  Bayer,  32  Ohio  St.  299;  Ferguson  v. 
121  Mass.  2.')'.) ;  2  Kent,  Com.  149.  Brooks,  67  Me.  251. 

Reeve,   Dom.   Kel.  72;    Barnes  v.  s  2  Bright,  Hub.  &  Wife,  22,  n. ;  and 

Harris,  Busbee,  i">;  Griffin  v.  Reynolds,  see  Stroop  v.  Swarts,  12  S.  &  R.  76; 

17  How   (U.  S.)  609.  linker  r.  Braslin,  16  R.  I.  635. 

4  Cassia  v.   Delany,  38  N.  Y.  178;  8  Hence  husband  and  wife  are  sued 

I                                 '.:  Me.  251  ;  supra,  together  for  the  libel  or  slander  of  the 

5.")');  Henderson  v.  Wendler,  89  S.  C.  wife.   McElfresh v.  Eirkendall, 36 Iowa, 

5.">.Y     Coercion,  if  relied   upon,  should  224.     Exemplary  damages  may  be  al- 

124 


CHAP.  IV.]  WIFE'S   INJURIES   AND   FRAUDS. 


76 


§  76.  Torts  by  Wife  which  are  based  on  Contract,  &c.  —  There 
are,  however,  not  only  torts  simplicitcr,  or  simple  wrongs  at  law, 
but  wrongs  where  the  substantive  basis  of  the  fraud  is  the  wife's 
contract.  The  common  law  has  been  supposed  to  apply  with 
the  same  force  in  both  cases,  partly  because  in  the  latter  instance 
the  person  injured  would  be  otherwise  without  a  remedy.1  But 
some  modern  cases  rule  that  though  the  husband  is  liable  fur 
the  wife's  general  frauds,  yet  when  the  fraud  is  directly  connected 
with  her  contract,  and  is  the  means  of  effecting  it,  and  part  and 
parcel  of  the  same  transaction,  the  wife  cannot  be  responsible, 
nor  can  the  husband  be  sued  for  the  fraud  together  with  the 
M'ife.2 

There  are,  however,  cases  where  the  wife  will  bind  her  hus- 
band by  her  fraudulent  representations  on  the  ground  of  her 
agency.3  And  where,  on  the  other  hand,  the  husband  and  wife 
were  sued  by  one  who  had  been  induced  by  the  false  representa- 
tions of  the  husband  to  buy  the  wife's  land,  the  action  was  lately 
held  maintainable  against  both  wife  and  husband,  though  the 


lowed  in  such  action.  Fowler  v.  Chi- 
chester, 25  Ohio  St.  9.  As  to  the  wife's 
publication  of  a  libel,  see  64  Vt.  450. 
They  are  sued  for  forfeitures  under  a 
penal  statute  where  she  participated. 
Austin  v.  Wilson,  4  Push.  273 ;  Mc- 
Queen v.  Fulgham, 27  Tex.  463  ;  Baker 
v.  Young,  44  111.  42 ;  Enders  i>.  Reck, 
18  Iowa,  86.  As  to  suits  to  recover 
penalties  for  usury,  see  Jackson  v. 
Kirby,  37  Vt.  448;  Porter  v.  Mount, 
43  Barb.  422.  So,  too,  for  a  wife's 
assault  and  battery.  Griffin  v.  Rey- 
nolds, 17  How.  (U.  S.)  609;  Roadcap 
v.  Sipe,  6  Gratt.  213;  16  R.  I.  635; 
Scbouler,  Hus.  &  Wife,  §  137.  Or  for 
the  forcible  removal  of  a  gate.  Handy 
v.  Foley,  121  Mass  259.  The  fact  that 
the  husband  is  made  responsible  by  the 
fact  of  coverture,  and  did  not  commit 
the  wrong  in  person,  cannot  go  in  miti- 
gation of  damages.  Austin  v.  Wilson, 
4  Cush.  273;  58  Vt.  558.  See  17  R.  I. 
81. 

The  husband  has  full  management 
of  the  defence.     And  we  need  hardly 


a ild  that  he  may  compromise  without 
his  wife's  assent.  Coolidge  v.  Parris, 
8  Ohio  St.  594. 

1  Macq.  Hus.  &  Wife,  130,  131 ; 
Head  v.  Briscoe,  5  Car.  &  P.  484,  per 
Tindal,  C.  J.;  Reeve,  Dom.  Rel.  72, 
73  ;  44  Mo.  App.  583. 

2  Liverpool  Adelphi  Loan  Associa- 
tion v.  Fairhurst,  9  Exch.  422  ;  25  Fla. 
927. 

3  Taylor  v.  Green,  8  Car.  &  P.  316  ; 
Scbouler,  Hus.  &  Wife,  §  136.  A  hus- 
band is  liable  in  replevin  for  his  wife's 
unlawful  detention  of  another's  chat- 
tels under  claim  of  title  in  herself. 
Clioen  v.  Porter,  66  Ind.  194.  But 
where  there  is  no  collusion  apparent, 
a  husband  will  not  be  committed  for 
his  wife's  breach  of  injunction.  Hope 
v.  Carnegie,  L.  R.  7  Eq.  254.  For 
statutory  changes  as  to  torts  and  frauds 
of  the  wife,  see  §  170,  n.  And  cf.,  as 
to  torts  connected  with  the  wife's  land, 
as  in  keeping  a  vicious  dog,  152  Mass. 
7;  135  N.  Y.  201. 

125 


§  77  THE   DOMESTIC    KELATIONS.  [PART   II. 

wife  was  innocent  of  the  fraud,  on  the  theory  that  the  husband 
made  the  false  statements  as  her  agent  and  that  she  received 
and  retained  the  fruits  of  the  fraud.1  Where  the  husband  admin- 
isters some  trust  on  the  part  and  in  the  right  of  his  wife,  he  is 
liable  in  equity  for  losses  occasioned  by  her  breaches  of  trust, 
whether  arising  from  her  negligence  or  her  active  misconduct.'2 

§  77.  Torts  committed  upon  the  "Wife.  —  So  far  as  the  hus- 
band is  injured,  his  right  of  action  is  sole;  but  where  the  wife 
is  the  meritorious  cause  of  action,  the  spouses  join  as  plaintiffs. 
For  injuries  to  the  person  or  character  of  the  wife,  therefore,  the 
husband  and  wife  at  the  common  law  should  sue  together.3  And 
it  may  happen,  where  both  were  personally  injured  together,  that 
the  husband  has  one  cause  of  action  as  an  individual,  and  another 
founded  upon  his  wife's  injury.  But  where  the  right  of  action 
for  damages  is  founded  on  the  prior  possession  of  personal  pro- 
perty, the  husband  must,  at  common  law,  sue  alone,  since  his 
possession  is  the  possession  of  both.4  And  the  joinder  of  the 
w7ife  in  actions  relating  to  personal  property,  where  the  injury 
was  committed  after  marriage,  is  good  ground  of  demurrer,  or 
motion  to  arrest,  or  even  of  error  after  judgment.5  Whether  the 
same  principle  applies  to  property  of  the  wife  parted  with  before 
marriage  is  not  so  clear.  This  is  the  rule,  however,  when  the 
action  is  for  a  wrong,  which  before  the  marriage  was  committed 
in  respect  to  such  property.6  But  where  the  trover  is  laid  before 
the  marriage,  and  the  conversion  afterwards,  there  has  been  some 
controversy,  the  result  of  which  seems  to  be  that  the  action  is 
well  brought,  either  with  or  without  joining  the  wife,  though 
the  l.»otter  course  doubtless  is  to  join  the  wife."     The  principle 

1  Krimmi  v.  Beach,  96  N.  Y.  398.  4  Bing.  Inf.  and  Cov.  25.3,  and  cases 

2  Bahin  r.  Hughes,  31  Ch.  D.  890.        cited;  Cro.  Eliz.  133;  1  Chit.  PI.  93; 

3  Bing.  Inf.  &  Cov.  247,  Am.  ed.,     l  Salk.  114. 

and  cases  cited.     Whether  in  such  suits  •'  Rawlins  v.  Rounds,  27  Vt.  17. 

it  is  a  fatal  error  for  the  declaration  to  °  3     Rob.    Tract.    188;     Milner    v. 

conclude  to  the  damage  of  the  "plain-  Milnes,  8  T.  R.  627;  Fewell  ''.Collins, 

tiff"    instead   of    "plaintiffs,"  see    57  I  Const.  207.     Cf.  61  Tex.  638. 

M'l.    121.     A    married    woman    cannot  7  Powes  v.   Marshall,   l    Sid.   172; 

sue  alone  for  assault  upon   her,  simply  Ayling  v.  Whicher,  6  Ad.  &  El.  259; 

on  the  ground  that  her  husband  lives  Blackborne  v.  Haigh,   2   Lev.  107;   3 

aparl   from   her  and   refuses  to  join  in  Rob.  Pract.  supra.    There  is  some  un- 

60    I'       331.     See  §219;  25  certainty  on  this  point,  however.     See 

Fla   927.  13ac.  Abr.  Baron  and  Feme-  (K.) ;  contra, 

12G 


CHAP.  IV.]       wife's  injuries  and  frauds. 


§77 


sought  is  whether  such  a  suit  amounts  to  a  disaffirmance  of  the 
husband's  constructive  title  to  the  goods  on  the  marriage.1 

The  damages  allowed  as  compensation  for  the  frauds  and 
injuries  sustained  by  the  wife  go  to  the  husband,  as  well  as  the 
rest  of  her  personal  property,  if  recovered  during  his  lifetime. 
But  such  suits  survive  to  her  where  she  is  the  meritorious  cause 
of  action;  and  on  the  death  of  the  husband,  pending  legal  pro- 
ceedings, the  wife   may  accordingly  proceed  to  judgment  and 


Brown  v.  Fi field,  4  Mich.  322;  Well- 
bom  v.  Weaver,  17  Ga.  267. 

1  As  to  injuries  relative  to  the  wife's 
real  estate,  see  infra,  ch.  6.  On  these 
principles  it  is  held  that  husband  and 
wife  must  sue  together  for  libel  or 
slanderous  words  spoken  against  the 
latter.  Smalley  v.  Auderson,  2  Mom*. 
56 ;  Davies  v.  Solomon,  L.  R.  7  Q.  B. 
112  ;  Harper  v.  Piukston,  112  N.  C.  293  ; 
Throgmortou  v.  Davis,  3  Blackf.  383. 
These  words  must  be  actionable  per  se. 
See  Beach  v.  Ranuey,  2  Hill,  309 ; 
Saville  v.  Sweeney,  4  B.  &  Ad.  514; 
Ryan  v.  Madden,  12  Vt.  51.  As  to 
slander  of  wife  charging  her  with 
"  adultery,"  see  Shafer  v.  Ahalt,  48 
Md.  171.  Special  damage  should  be 
shown  in  order  to  sustain  the  action. 
lb. ;  Allsop  v.  Allsop,  2  L.  T.  n.  s.  290. 
Words  charging  her,  while  unmarried, 
with  fornication  are  actionable.  Gib- 
son v.  Gibson,  43  Wis.  23.  They  sue  for 
battery  of  the  wife.  Pillow  v.  Bushnell, 
5  Barb.  156.  Also  for  injuries  sustained 
by  her  through  the  negligence  of  a 
common  carrier.  Heirn  v.  McCaughan, 
32  Miss.  17  ;  Blair  v.  Chicago  R.,  89 
Mo.  334.  Also  for  the  malpractice  of  a 
physician,  even  though  it  afterwards 
cause  her  death.  Cross  v.  Guthery,  2 
Root,  90;  Hyatt  v.  Adams,  16  Midi. 
180.  See  State  r.  Housekeeper,  70  Md. 
162.  Also  for  frauds  upon  the  wife,  as 
in  case  of  an  action  qui  tarn  to  recover 
penalties  for  a  fraudulent  conveyance. 
Fowler  v.  Frisbie,  3  Conn.  320.  But 
see  Crump  v.  McKay,  8  Jones,  32,  as  to 
negligence  "sounding  in  contract,"  not 
admitted  to  be  cause  of  action.  Also 
for  malicious  prosecution.     Laughlin  v. 


Eaton,  54  Me.  1 56.  And  the  rule  is  the 
same  in  all  these  cases,  whether  the 
fraud  or  injury  was  committed  before  or 
during  coverture.  But  if  the  wife  be  a 
privy  to  the  wrong,  or  culpably  suffer 
an  injury  to  be  committed  upon  her,  the 
husband  cannot  maintain  his  action ; 
for  his  right  to  damages  cannot  be 
greater  than  hers  would  have  been  had 
she  remained  single.  Pillow  v.  Bush- 
nell, 5  Barb.  156.  Nor  can  an  action  be 
maintained  where  the  husband  instigates 
the  wrong.  Tibbs  v.  Brown,  2  Grant's 
Cases,  39.  Nor  in  slander  where  the 
words  are  not  actionable,  though  the 
wife  become  ill  in  consequence  of  the 
slander.  Wilson  v.  Goit,  17  N.  Y.  442. 
In  a  joint  action  for  personal  wrong  to 
the  wife,  the  declaration  should  con- 
clude "  to  their  damage."  Horton  v. 
Byles,  1  Sid.  387  ;  Smalley  v.  Anderson, 
2  Monr.  56.  And  it  is  a  well-recog- 
nized principle,  both  in  England  and 
America,  that  whenever  the  wife  is 
the  meritorious  cause  of  action,  her 
interest  must  appear  on  the  face  of  the 
pleadings,  or  the  omission  will  be  con- 
sidered fatal.  Staley  i>.  Barhite,  2 
Caines,  221  ;  Serres  v.  Dodd,  5  B.  &  P. 
405 ;  Thorne  v.  Dillingham,  1  Denio, 
254  ;  Pickering  v.  De  Rochemont,  45 
N.  H.  67.     Cf.  57  Md.  121. 

Where  the  tort  was  committed  be- 
fore the  woman  was  married,  the  action, 
if  she  marries  afterwards,  should  be 
brought  by  husband  and  wife ;  or  if  she 
marries  pending  the  action,  the  hus- 
band is  entitled  to  be  admitted  as  a 
plaintiff.  Gibson  v.  Gibsou,  43  Wis. 
23. 

127 


£    I  i  THE   DOMESTIC   RELATIONS.  [PAET   II. 

collect  the  damages  for  herself;  or  if  her  husband  had  never 
brought  an  action,  she  may  then  do  so  in  her  own  right.1  The 
husband,  on  the  other  hand,  has  no  such  interest  in  the  suit  at 
common  law  that  he  may  prosecute  it  in  his  own  name  after 
his  wife's  death.  His  joinder  in  the  first  place  was  only  because 
of  the  marriage  relation.  He  may,  however,  under  some  stat- 
utes, be  let  in  as  her  administrator,  and  in  such  capacity  prose- 
cute the  suit  to  its  conclusion.2  If  the  wife  dies  after  judgment, 
the  husband  surviving  may  take  the  benefits  of  the  suit ;  for  a 
judgment  debt  takes  the  place  of  the  original  cause  of  action. 
The  death  of  the  wife,  pending  suit  for  her  personal  tort,  put 
an  end  to  the  action  altogether  by  the  old  law.3  But  where  the 
so-called  tort  was  referable  rather  to  some  breach  of  contract,  it 
might  survive.4 

Since  the  husband  is  at  the  common  law  entitled  to  the 
society  and  services  of  his  wife,  two  separate  causes  of  action 
may  arise  from  injuries  inflicted  upon  her  person.  One,  in  the 
name  of  both  for  her  own  injuries,  we  have  just  considered  ;  the 
other  is  in  the  name  of  the  husband  alone  per  quod  consortium 
amisit.5  Thus,  if  the  wife  be  wantonly  bruised  and  maltreated, 
her  husband  may  bring  his  special  action  per  quod  for  the  loss 
of  her  society  and  for  his  medical  expenses.6  But  there  can  be 
no  special  damage  recovered  by  the  husband  by  way  of  aggra- 
vation in  the  joint  suit  for  his  wife's  injuries,  which  is  founded 
in  her  meritorious  claim.  Thus,  in  the  joint  action  for  an  as- 
sault on  the  wife,  the  surgeon's  bill  cannot  be  recovered  ;  if  for 
slander  of  the  wife,  the  loss  of  wages  cannot  be  claimed ;  there 
the  sole  right  of  the  husband  should  by  sued  on  in  his  name.7 

i  Bing.  Tnf.  &  Cov.  247,  2*8;  New-  tion  R.  R.  Co.,  7  Hurl.   &   Nor.  834; 

ton  v .Hatter,  2  Ld.  Raym.  L208;  An-  Whitcomb  v.  Barrc,  37  Vt.  148;  Ka- 

derson  <-.  Amh-rsoii,  11  Hush,  327.  ranaugh    v.   Janesville,   24    Wis.   618; 

2  rhiity,  PL  74  ;  Norcrosa  v.  Stuart,  Hooper  v.  Haskell,  56  Me.  251. 

50    M<-    87;  Pattee   v.   Harrington,   11  ''  Modern  legislation  should  be  ex- 

Pick.  221 ;  Crozier  v.   Bryant,    I    Bibb,  plicit  to  deprive   the   husband   of  his 

171;  Saltmarsh  v.  Candia,  51   X.  II   71.  special   action.     As  to  the  "society" 

*  Bac.  Abr.    Baron   &    Feme   (K.)  ;  lost,  the  law  menus  a  wife's  capacity 

Meese  v.  Fond  du  Lac,  4k  Wis.  323.  for  comfort  and  usefulness  to  her  bus- 

4  Longj>.  Morrison,  14  [nd.  595.  band.      i<>2  Mo.  669;    Kelley  v.  May- 

'>  :•,   i:i    Com.    140;  Cro.   Jac.   501,  berry,  154  Penn.  St.  440;  121  Ind.  375  j 

hirter  v.   Hatten,  42   [owa,  91  Ga.  466,  813. 

Brockbank  v.  Whitehaven  June-  7  Dengate  v.  Gardiucr,  4  M.  &  W.  6 ; 

128 


CHAP.  IV.]  WIFE'S    INJURIES    AND   FRAUDS.  §  77 

Nor,  on  the  other  hand,  can  the  husband  recover  for  the  wife's 
mental  anguish  or  other  damages  incidental  to  the  joint  suit  in 
his  sole  suit  for  damages.1  It  would  appear  that  the  husband 
may  release  the  damages  for  his  wife's  injuries,  and  then  recover 
for  the  loss  arising  to  himself  alone ;  he  may  certainly  release 
or  compromise.2  Where  the  husband  is  alone  entitled  to  the 
damages,  and  in  case  of  his  death  they  would  go  to  his  repre- 
sentatives, he  must  sue  alone ;  and  his  sole  suit  will  not  be 
defeated  by  his  wife's  death  before  action  brought.3 

Of  the  suits  which  the  husband  may  bring  for  loss  of  his 
wife's  society,  that  for  enticing  a  wife  away  has  already  been 
considered.4  Somewhat  akin  to  this  is  his  action  for  his  wife's 
seduction,  founded  on  the  same  general  marital  rights.  But 
the  common  law  still  keeps  up  its  legal  fiction  of  the  wife's 
civil  incapacity,  and  treats  the  seducer  as  guilty  of  trespass  by 
force  of  arms,  whether  the  wife  actually  consent  to  the  guilt  or 
not.5  A  husband  who  lives  apart  from  his  wife,  under  articles 
of  separation  or  a  decree  of  divorce  from  bed  and  board,  cannot 
maintain  a  suit  for  damages  per  quod,  since  he  has  suffered  no 
loss  of  her  society.6  Nor  does  an  action  lie  for  enticing  one's 
wife,  and  so  reviling  the  marriage  while  she  was  detained  that 
she  languished  and  died  ;  and  for  refusing  to  let  the  husband 
attend  the  funeral,  of  which  the  enticer  had  charge.7  The  wife 
was  never  permitted  to  sue  for  the  loss  of  her  husband's  society 
and  services,8  though  on  general  principle  it  is  hard  to  see  why, 
save  for  her  coverture,  she  should  not  have  been. 


Knvanaugh  v.  Jauesville,  24  Wis   618  ;  6  Schouler,  Hus.  &  Wife,  §  140  ;  Fry 

King  v.  Thompson,  87  Penn.   St.  365.  v.  Perstler,  2  Yeates,  278;    Ballard  v. 

See  Lewis  v.  Babcock,  18  Johns.  443.  Russell,  36  Me.  196  ;  Burger  v.  Belsley, 

1  Hooper  v.  Haskell,  56  Me.  251.  45  111.  72. 

2  Southworth   v.   Packard,    7    Mass.  7  Neilson  v.  Brown,  13  R.  I.  651. 

95;  Anderson   v.   Anderson,    11   Bush,  8  2   Kent,  Com.   182;  Tuttle  v.  Chi- 

^327.  cago  R.,  42  Iowa,  518;  Carey  v.  Berk- 

3  Wheeling  v.  Trowbridge,  5  W.  Va.  shire  R.,  1  Cush.  475.  An  action  cannot 
353.  in  general  be  maintained  by  the  wife, 

4  Supra,  §  41.  As  to  this  seduction  there  being  no  misfeasance  towards  her, 
suit,  see  Schouler,  Hus.  &  Wife,  §  140.  independently  of  a   contract   with   the 

5  3  Bl.  Com.  139,  140.  An  action  husband  alone.  Longmeid  v.  Holliday, 
on  the  case  is  allowable,  though  not  6  Exch.  761.  Cf.  §  41  ;  26  Fed.  R.  13, 
usual.  Chamberlain  v.  Hazelwood,  5  which  permits  a  wife's  suit;  16  CoL 
M.  &W.  517.     Supra,  §41.  523. 

9  129 


§79 


THE   DOMESTIC    RELATIONS. 


[PART   II. 


§  78.   Torts  upon  the  Wife  ;  Instantaneous  Death  ;  Statutes.  — 

Instantaneous  death  of  the  husband  or  wife,  at  the  common 
law,  gave  no  right  of  action  to  the  survivor.  Nor  could  the 
husband,  whose  wife  was  thus  killed  by  another's  carelessness, 
sue  per  quod,  because  he  could  not  be  said  to  have  lost  her 
society  during  any  portion  of  her  life.1  A  wife,  of  course,  could 
not  sue  for  the  death  of  her  husband.2  Where  the  wife  dies  in 
consequence  of  one's  carelessness,  as  in  case  of  malpractice,  the 
husband  may  recover  damages  for  the  injury  accruing  to  him- 
self before,  but  not  for  the  injury  in  consequence  of,  the  death.3 
Modern  legislation  has  supplied  many  new  remedies  much 
needed  in  these  classes  of  cases,  particularly  with  reference  to 
injuries  and  loss  of  life  occasioned  through  the  carelessness  of 
railroad  companies  and  other  common  carriers.4 

§  79.  Torts  upon  the  Wife  ;  Miscellaneous  Points.  —  It  should 
be  observed  that,  wherever  husband  and  wife  are  both  injured  by 
the  same  party,  they  have  two  distinct  and  separate  causes  of 
action,  which  must  not  be  confounded.     Thus,  for  libel  against 


1  Yelv.  89.  90 ;  Baker  v.  Bolton,  1 
Camp.  493 ;  Greeii  v.  Hudson  R.  R.  Co., 
28  Barb.  9  ;  Hallenbeck  v.  Berkshire 
R.  R.  Co.,  9  Cush.  109.  See  Georgia 
R.  R.  Co.  v.  Wynn,  42  Geo.  331,  which 
considers  a  statute  providing  only  for  a 
wife's  suit  by  reason  of  her  husband's 
death,  by  railroad  accident,  and  not  for 
a  husband's  suit  by  reason  of  his  wife's 
death. 

2  2  Kent,  Com.  182;  Carey  v.  Berk- 
shire R.,  1  Cush.  475. 

y  Hyatt  v.  Adams,  16  Mich.  180; 
Long  r.  Morrison,  14  Ind.  595. 

I  ])i.k<  ns  r.  N.  Y.  Central  R.  R,  Co., 
2*  Barb  n  ;  Stat  9  &  10  Vict,  c  93  ; 
Mass.  Gen.  Stats,  c.  63,  §  97.  And 
wherever  by  special  Btatute  some  right 
of  action  for  damages  is  given  fas 
a  town  Eor  a  defective  high- 
ome  ■  if  our  courts  seem  disp  ised 
to  allow  the  husband's  medical  ex- 
penses by  way  of  aggravation,  in  the 
joint  -mi  of  husband  and  wife,  even 
though  he  maj  no!  be  empowered  to 
brin:,'  a  Miit  in  hi-  own  name  to  recover 
•  iii  as  damages  per  <i>t<>d.     liar- 

L30 


wood  v.  Lowell,  4  Cush.  310;  Sanford 
v.  Augusta,  32  Me.  536;  Hunt  v.  Win- 
field,  36  Wis.  154;  Fuller  v.  Xaugatuck 
R.  R.  Co.;  21  Conn.  557  ;  49  111.  App. 
105.  See  Carlisle  v.  Town  of  Sheldon, 
38  Vt.  440.  In  some  of  these  statutory 
cases,  however,  the  husband  may  bring 
his  separate  suit  per  quod  as  before,  in 
addition  to  the  suit  for  the  wife's  injury. 
Klein  v.  Jewett,  26  X.  J.  Eq.  474;  Ka- 
vanangh  v.  Janesville,  24  Wis.  618; 
Whitcomb  v.  Barre,  37  Vt.  148. 

Where  husband  and  wife  wore  in- 
jured simultaneously,  and  both  died, 
the  husband  a  little  before  the  wife, 
it  was  held  that  the  right  of  action 
vested  absolutely  in  the  wife.  Waldo 
v.  Goodsell,  33  Conn.  4f>:>.  Whore  the 
action  is  brought  in  assumpsit,  as  upon 
a  carrier's  contract  to  carry  safely,  the 
considerations  are  those  of  contract,  not 
tort.  Sec  Pollard  r.  Xew  Jersey  K.,  lni 
U.  S.  223.  Recovery  by  the  adminis- 
trator for  personal  injury  caused  by  the 
wile's  death  enures  to  the  benefit  of  the 
surviving  husband  under  some  State 
codes.    8  Lea,  96. 


CHAP.  V.]      WIFE'S  PERSONAL  PROPERTY.  §  80 

husband  and  wife,  the  husband  must  sue  alone  for  the  libel 
against  him,  and  husband  and  wife  jointly  for  the  libel  against 
her ;  they  cannot  sue  together  for  the  libel  against  both.1  And 
so  it  is  in  suits  for  personal  injury  to  both.2  But  actions  are 
sometimes  consolidated  in  practice.3  Whether  a  husband's 
contributory  negligence  shall  bar  the  joint  suit  for  his  wife's 
injuries  is  a  novel  and  interesting  point.4 

We  may  notice,  finally,  one  important  distinction  made  be- 
tween the  wife's  general  contracts  and  her  frauds  and  injuries. 
In  the  one  case  the  man  is  held  liable  to  third  parties  for  her 
acts  as  agent,  even  though  never  married  to  her;5  and  simple 
cohabitation  is  sufficient  to  charge  him.  But  simple  cohabita- 
tion will  not  be  enough  to  make  him  responsible  for  her  civil 
injuries.  Marriage  in  fact  is  essential.  And  this  latter  prin- 
ciple applies  likewise  where  he  seeks  indemnity  for  her  injuries.6 
The  facility  with  which  an  agency  is  created  at  law  for  contracts 
may  serve  to  explain  the  difference  between  the  two  cases. 


CHAPTER  V. 

EFFECT  OF  COVERTURE  UPON  THE  WIFE'S  PERSONAL  PROPERTY. 

§  80.  Wife's  Personal  Property  in  General ;  Marriage  a  Gift  to 
the  Husband.  —  Personal  property  comprises  things  in  posses- 
sion, or  goods  and  effects,  such  as  money,  furniture,  and  farm 
stock,  which  one  holds  as  the  property  itself,  and  things  in 
action,  such  as  bonds  and  other  outstanding  debts.7     The  hus- 

1  Gazynski  r.Colburn,ll  Cnsh.  10;  4  See  Penn.  R.  v.  Goodenough,  55 
Ebersoll  v.  King,  3  Binn.  555 ;  Newton     N.  J.  L.  577. 

r.  Hatter,  2  Ld.  Raym.  1208 ;  Skogland  v.  6  Supra,  §  71. 

Street  R.,  45  Minn.  330.     For  statutory  6  Overholt  v.  Ellswell,  1  Ashm.  200. 

changes  as  to  injuries  sustained  by  the  See  Norwood  v.  Stevenson,  Andr.  227. 
wife,  see  §  170  n. ;  13  Q.  B.  D.  784*  :  2  Bl.  Com.  389,  396  ;  2  Kent,  Com. 

2  Northern  Central  R.  v.  Mills,  61  351.  Seel  Schouler, Pers. Prop. §§  11, 12 
Md.  355  ;  Matthew  v.  Central  Pacific  where  the  leading  distinctions  between 
R.  63  Cal.  450.  "  things  in  possession  "  and  "things  in 

3  Hemstead  v.  Gas  Light  Co.,  3  action"  are  noticed  at  length,  and 
Hurl  &  C.  745.  where  reasons  are  stated  why  the  terms 

131 


§  80  THE   DOMESTIC    RELATIONS.  [PART   II. 

band's  title  to  his  wife's  personal  property  at  the  common  law 
is  either  absolute  or  qualified,  according  as  the  particular  prop- 
erty belongs  to  the  one  class  or  the  other.  We  shalLttherefore, 
in  this  chapter,  treat  of,  first,  the  wife's  things  or  personal  prop- 
erty in  possession ;  second,  her  things  or  personals  in  action. 

But  in  general  it  may  be  premised  that  the  wife's  personal 
property  goes  to  the  husband,  whether  belonging  to  her  at  the 
time  of  marriage,  or  acquired  afterwards  by  gift,  bequest,  or  pur- 
chase ;  whether  actually  or  beneficially  possessed  ;  whether  prin- 
cipal fund  or  income.  So  her  earnings  belong  to  her  husband. 
Marriage,  therefore,  operates  in  this  respect  as  a  gift  to  the  hus- 
band ;  and  while  the  gift  is  only  qualified,  so  far  as  things  in 
action  are  concerned,  it  lies  in  his  power  to  make  the  gift  abso- 
lute during  coverture.1 

This  privilege  of  the  husband  lasts  as  long  as  the  marriage 
relation  continues,  even  though  he  be  living  apart  from  his  wife 
in  adultery,  and  she  acquire  the  property  by  her  own  labor2  or 
by  bequest.3  Neither  divorce  from  bed  and  board,  nor  separation, 
takes  away  his  right.4  But  divorce  from  the  bonds  of  matri- 
mony, or  the  death  of  either  party,  puts  an  end  to  the  gifts  of 
coverture,  leaving  open  the  adjustment  of  the  rights  of  the  respec- 
tive parties  with  one  another,  or  between  the  survivor  and  the 
representatives  of  the  deceased,  on  other  principles  to  be  here- 
after explained. 

And  it  is  a  matter  of  course  that  the  wife's  property  should  be 
hers  in  her  own  right,  in  order  that  the  husband's  title  may 
attach.  For  property  may  come  to  her  with  restrictions  upon 
husband's  rights,  such  as  the  giver  has  seen  fit  to  impose.5 
Her  parajjhemalia  follow  a  rule  somewhat  peculiar.6  And,  as 
we  shall  see  in  later  chapters,  much  of  the  common  law  bearing 

"corporeal"    and    "incorporeal"    per-  3  Vreeland   v.   Ryno,   26  N.  J.  Eq. 

Bona!   property  should  he  preferred  at  160. 

day.  4  Glover    v.    Proprietors   of    Drury 

1    I    Bright,   IIus.    &  Wife,   34,    35;  Lane,  2  Chitty,  117 ;  Washhurn  v.  Hale, 

Co,    I. in.  .',115  o,35]    l>;  2   Kent,  Com.  10   Pick.   429;    Prescott   v.   Brown,  23 

130,  etc. ;     Campbell    v.  Oalbreath,    12  Me.  305;    1   Roll.  Abr.  343.    But  see 

Bush,  459.  Divorce,  infra,  c.  17. 

-  Rowel]    v.    Brooks,    7    Pick.   65;  *  Co.  Litt.  851 ;  11  Mod.  178. 

Turtle    '.   Mmuv,  2  .1.  .1    Marsh.  82;  H  See  post,  cs.  15,  16,  as  to  rights 

Armstrong  v,  Armstrong,  32  .Miss.  279.  upon  death  of  a  spouse. 

132 


CHAP.  V.]      WIFE'S  PERSONAL  PROPERTY.  §  81 

upon  this  subject  is  practically  superseded  by  the  law  of  the 
wife's  separate  property. 

§  81.  Earnings  of  Wife  vest  in  Husband.  —  Earnings  of  the 
wife  belong  to  the  husband.  The  rule  of  the  common  law  is 
that  he  takes  all  the  benefits  of  her  industry.1  This  rule  applies 
to  money  earned,  and  to  other  produce  of  the  wife's  earnings.2 
He  alone  can  give  a  discharge  for  any  demand  which  may  arise 
from  her  services.  He  may  of  course  constitute  her  his  agent 
for  receiving  the  pay  to  herself;  but,  without  evidence  of  some 
such  authority,  the  person  who  employs  her,  as  a  nurse  for  in- 
stance, cannot  protect  himself  by  showing  her  separate  receipts.3 
For  these  earnings  the  husband  sues  alone,  and  in  own  name.4 
And  where  the  husband  supports  his  household,  all  claims  upon 
a  boarder  or  lodger  are  presumably  on  his  behalf.5  He  may 
consent  that  her  earnings  be  her  own,  but  that  right  rests  upon 
his  consent,  and  raises  other  questions  to  be  considered  here- 
after ; 6  nor  can  that  consent  be  exercised  in  disregard  of  his 
existing  creditors.7  It  follows  that  the  proceeds  of  the  joint 
labor  of  husband  and  wife  belong  at  common  law  to  the  hus- 
band, as  where,  for  instance,  they  raise  cotton  together;8  and 
that  an  action  by  a  husband  in  his  own  name,  for  his  own  ser- 
vices and  his  wife's,  rendered  under  the  same  contract,  is  well 
brought.9 

1  Macq.  Hus.  &  Wife.  44,  45 ;  88  Porter,  80  Ala.  476.  And  81  Ala.  489, 
N.  C.  463  ;  Gormaii  v.  Wood,  73  Ga.  549,  is  to  the  effect  that  the  husband 
370;  McDavid  v.  Adams,  77  111.  155;  cannot  invest  such  earnings  for  her  ben- 
Yopst  v.  Yopst,  51  Ind.  61.  efit  to  the  prejudice  of  his  own  credi- 

2  Bucher  v.  Ream,  68  Penn.  St.  421  ;  tors.     See  c.  14,  post. 

Hawkins  v.   Providence  R.,  119   Mass.  7  Cramer  v.  Redford,  2  C.  E.  Green, 

596.  367 ;    Postnuptial   Settlements,  post,   c. 

3  Offley  v.  Clay,  2  Man.  &  Gr.  172  ;     14;  Glaze  v.  Blake,  56  Ala.  379. 

and  see  Glover  v.  Drury  Lane,  2  Chitty,  8  Bowden  v.  Gray,  49  Miss.  547.     Cf. 

117;    Russell   v.    Brooks,    7    Pick.    65.  as  to  modern  legislative  changes,  §  162. 

But  see  Starrett  v.  Wynn,   17  S.  &  R.  Notwithstanding  permissive  statutes  as 

130.  to  the  wife's  earnings,  the  law  favors 

4  Gould  v.  Carlton,  55  Me.  511  ;  a  husband's  suit  against  third  parties, 
McDavid  v.  Adams,  77  111.  155.  where  the  wife  did  not  make  the  eon- 

5  Barnes  v.  Moore,  86  Mich.  585.  tract,  or  sets  up  no  separate  claim.     Por- 

6  See  post,  c.  12,  as  to  wife's  power  ter  v.  Dunn,  131  N.  Y.  314;  118  N.  Y. 
to  trade,  &c.  If  a  husband  renounces  304 ;  76  Ga.  104 ;  Howe  v.  Hyde,  88 
to  his  wife  his  right  to  her  earnings,  he  Mich.  91. 

may   revoke   that   renunciation    before  9  Harrington  v.  Gies,  45  Mich.  374. 

the  gift    is    consummated.      Boj-ett  v. 

133 


§  82  THE   DOMESTIC    RELATIONS.  [PART   II. 

§  82.  Wife's  Personal  Property  in  Possession.  —  Now,  to  take 
the  broad  division  of  the  cominon  law  as  applied  to  all  the  wife's 
personal  property,  whether  derived  from  a  former  husband  or 
elsewhere.  First,  as  to  the  wife's  choses  or  personals  in  posses- 
sion, or  corporeal  personal  property.  To  these  the  husband's 
right  at  common  law  is  immediate  and  absolute.  He  may  dis- 
pose of  them  as  he  sees  fit  during  his  life,  whether  with  or  with- 
out his  wife's  consent ;  he  may  bequeath  them  by  will ;  and 
after  his  death  such  property  is  regarded  as  assets  of  his  estate, 
the  title  passing  to  his  executors  and  adminstrators,  to  the  exclu- 
sion of  the  wife,  though  she  survive  him.1 

If  the  wife's  interest  in  personal  property  be  that  of  an  owner 
in  cominon,  the  husband  becomes  an  owner  in  common  in  her 
stead.2  So  corporeal  chattels  of  a  female  ward,  in  the  hands  of 
her  guardian,  being  legally  hers  at  the  time  of  marriage,  become 
her  husband's,  and  his  marital  rights  attach  at  once,  notwith- 
standing the  guardian  retains  possession  longer.3  The  wife's 
vested  remainder  in  personal  estate  goes  to  the  husband  on  ter- 
mination of  the  particular  estate ;  and  where  both  husband  and 
wife  die  during  the  continuance  of  the  particular  estate,  the  hus- 
band's representatives,  and  not  the  wife's,  are  held  to  take  such 
remainder.4  But  the  husband  cannot  be  considered  a  purchaser 
by  marriage  for  a  valuable  consideration  against  a  legal  title 
admitted  to  be  valid  by  his  wife  before  marriage.5 

Chattels  bequeathed  to  the  wife,  without  restriction,  pass  to 
the  husband  at  once  like  her  other  tilings  in  possession.6  So  all 
her  movables,  such  as  jewels,  household  goods,  furniture,  and  the 
like,  also  cash  in  her  hands,  go  to  him  absolutely  and  at  once, 

i  Co.  Litt.  300,  351  b ;  2  Kent,  Com.  2  Hopper   v.   McWhorter,    18    Ala. 

14-ri;   Legg  v.   Legg,  8  Mass.  99  ;  Lam-  229. 

phir  r.Creed,  8  Ves.  599;  Winslow  v.  :1  Sallee   v.    Arnold,    32    Mo.    532; 

Crocker,  17  Me.   29;  Bing.  Inf.  &   Cov.  Chambers  v.   Perry,    17  Ala.   720;  Mc- 

208,  cases  cited  by  Am.  cd. ;  Iloskins  Daniel  v.  Whitman,  16  Ala. 843;  Miller 

v.  Miller,  2   Dev.  360;  Hyde  '•.  Stone,  v.   Blackburn,   14    Ind.  62.     And   see 

.    230;  Morgan  v.  Thames  Bank,  Davis's  Appeal,  60  Penn.  St.  118. 
11    Conn.    99;  Hawkins    v.    Craig,    6         *  Tone  v.  Cooper,  4  Sneed,  296. 
Monr.  -'.".7  ;  Caffee  v.  Kelly,  l  Bush  48  ;         5  Willis  v.  Snelling,  6  Rich.  280. 
Skillman  v.  Skillman,  '_>  Beaaley,  403;         8  Shirley  v.  Shirley,  9  Paige,  363; 

Hopkins  r.  Carey,  23  Miss.  54  ;  Crop-  Newlands  v.  Paynter,4  M.  &  C.  408 ; 

sej  v.  McKinney,80  liarb.  47  ;  Carleton  Crane  v.  Brice,  7  M.  &  W.  183;  Rex  v. 

v.  Lovejoy,  :>i  Me  4 15  ;  85  Va.  lir.t.  French,  R.  &  R.  C.  C.  491. 

184 


CHAP.  V.]      WIFE'S  PERSONAL  PROPERTY.  §  82 

whether  owned  by  the  wife  at  the  time  of  marriage  or  nominally 
vesting  in  her  at  some  period  of  her  coverture.  Whether  money 
at  her  banker's  follows  this  same  principle  may  depend  upon  a 
distinction  first  taken  by  Sir  William  Grant  in  Carr  v.  Carr.1 
He  there  says  that  a  balance  at  a  banker's  is  a  debt,  and  not  a 
deposit.  But  if  the  money  were  delivered  to  the  banker  in  a 
sealed  bag,  it  would  then  be  truly  a  depositum.  It  would  then 
have  what  is  called  an  ear-mark ;  in  other  words,  it  would  be  a 
specific  chattel,  and,  as  such,  would  vest  by  the  marriage  in  the 
husband  as  his  absolute  property.2  Therefore,  should  the  hus- 
band die  without  recovering  such  specific  chattels  or  goods,  they 
would  belong  to  his  representatives,  and  not  to  the  wife  by  right 
of  survivorship.3  The  true  test  of  the  husband's  title  is  this  : 
whether  the  personal  property  in  question  was  or  was  not  tech- 
nically a  thing  in  possession. 

As  to  the  wife's  personal  apparel,  the  doctrine  of  parapher- 
nalia will  be  found  to  reserve  to  her  a  needful  right  in  the  most 
delicate  instance  where  controversy  can  arise.  Otherwise  it 
would  appear  that  her  apparel  belongs  to  her  husband  at  com- 
mon law  together  with  the  obligation  of  supplying  it;  and  he 
only  can  sue  others  for  its  loss.4  She  cannot  sell  or  give  her 
clothing  away,  probably,  which  he  supplied,  except  by  virtue 
of  an  agency  ;  which  agency,  however,  might  be  readily  inferred 
from  circumstances.  But  the  wife's  reasonable  clothing  belongs 
to  the  husband  for  the  wife's  use,  like  her  victuals  and  other 
necessaries,  and  he  must  not  wantonly  deprive  her  of  it  so  as 
to  leave  her  destitute.6  Even  conceding  a  wife's  own  title  to 
her  wearing  apparel  or  trunk,  in  certain  cases,    the    husband's 

1  1  Mer.  543,  n.  It  would  appear  that  at  common  law 

2  Per  Sir  William  Grant  in  Carr  v.  a  bride's  wedding  presents  vested  in  her 
Carr,  1  Mer.  543;  Hill  v.  Foley,  1  Phil,  husband.  49  Mo.  App.  127.  But  the 
404.  Money  deposited  with  a  banker  rales  of  separate  property  and  marital 
in  the  usual  way  is  money  lent  to  the  legislation  introduce  ample  qualifka- 
banker,  with  the  obligation  superadded  tions,  especially  where  the  wife's  maiden 
that  it  be  repaid  when  called  for.     Pott  name  is  marked  upon  such  presents. 

r.  Clee;,  11  Jur.  289;Schouler  Bailm.§  14.  5  Powes   v.   Marshall,    1    Sid.    172; 

3  Hawkins  v.  Providence  R.,  119  Macq.  Hus.  &  Wife,  19,20;  1  Bac.  Abr. 
Mass.   596.  700,  tit.  Baron  &  Feme,  V.;  1  Roper, 

*  See   Delano  v.  Blanchard,  52  Vt.     Hus.  &  Wife,  169  ;  1  Vent.  261. 
578;    Hawkins   v.   Providence   R.,    119 
Mass.  596. 

135 


§  83  THE   DOMESTIC   RELATIONS.  [PART   II. 

special  title  should  sufficiently  sustain  his  suit  against  third 
parties,  as  bailee  or  agent  with  reference  to  such  property ; 1 
and  so  too  where  the  property  was  partly  her  own.2 

§  83.  Wife's  Personalty  in  Action.  —  Secondly.  The  hus- 
band's right  to  his  wife's  incorporeal  personal  property  —  or  at 
least  to  her  choses  in  action,  as  they  are  commonly  called  —  is 
qualified.  Marriage  operates,  not  as  an  absolute  gift  of  such 
property,  but  rather  as  a  conditional  gift,  the  condition  being 
that  the  husband  shall  do  some  act  while  coverture  lasts,  to 
appropriate  the  choses  to  himself.  If  he  happen  to  die  before 
he  has  done  so,  such  choses,  not  having  been  reduced  to  posses- 
sion, remain  the  property  of  the  wife,  and  his  personal  repre- 
sentatives have  no  title  in  them.3  But  this  applies  only  to 
outstanding  things  in  action  ;  for  some  may  have  been  reduced 
to  possession  by  the  husband  during  his  lifetime,  and  some 
may  not.  If  the  wife  die  before  the  husband  has  reduced 
the  chose  to  possession,  he  has  no  title  in  it  as  husband,  but  it 
goes,  strictly  speaking,  to  her  administrator  or  personal  represen- 
tative,4 though  under  our  statutes  the  husband  has  commonly 
the  right  both  to  administer  and  inherit  a  good  part,  at  least,  of 
his  wife's  personal  property,  and  she  cannot  will  otherwise.5 

"With  respect  to  such  choses  in  action  as  may  accrue  to  the 
wife  solely,  or  to  the  husband  and  wife  jointly,  during  cover- 
ture, the  same  doctrine  applies.  The  husband  may  disagree  to 
his  wife's  interest  and  make  his  own  absolute  at  any  time  dur- 
ing coverture  by  recovering  in  suit  in  his  own  name  or  other- 
wise reducing  them  to  possession.  But  until  such  disagreement, 
such  choses  in  action  belong  to  the  wife,  and,  if  not  reduced 
into  possession  by  the  husband,  will  likewise  survive  to  her.6 

1  Jacksonville  R.  ».  Mitchell,  (1894),  4  Walker  v.   Walker,  41   Ala.  353; 

Fla  ;  Smith  v.  Ahair,  H7  Mich.  62.  Fleet  v.  Perriiis,  L.   R.   3  Q.   B.   536; 

-  (,illi -it.  v.  Knowles,  97  Mich.  77.  Scrutton  v.  Pattillo,  L.  R,  19  Eq.  369. 

:;  Co.    Litt.   351  ;  1    Bright,  IIus.  &         5  See  c.  \5,post;  110  Intl.  31. 

Wife,  86;  2  Kent,  Com.  185  et  seq.,  and         8  Coppin   v. ,  2   P.  Wins.  497; 

cited;   Scawen   v.  Blunt,  7  Ves.  Day   v.  Padrone,  2  M.  &  S.  390,  n.\ 

294      Fleel   v.  Perrins,   L.   It.  3  <v>.   B.  Howell  v.  Maine, 3  Lev.  403 ;  Wildman 

Langharo  v.   Nenny,  3  Ves.  407;  v.  Wildman, 9  Ves.  174;  1  Bright, Hus. 

Trio    ,-.   Colwell,  31     Penn.  St.    228;  &  Wife,  37 ;  2  Kent,  Com.  135,  and  cases 

Needles   v.   Needles,   7   Ohio  St.  432;  cited.     Wilkinson   v.  Charlesworth,  11 

Burleigh  v.  Coffin,  2  Post.  118.  Jur.  644;  Standeford  v.  Devol,  21  Ind. 

L86 


CHAP.  V.]  WIFE'S   PERSONAL   PROPERTY.  §  83 

It  becomes  important,  therefore,  at  common  law,  to  distin- 
guish the  wife's  things  in  action  from  her  things  in  possession. 
To  the  class  of  things  in  action  belong  such  property  as  rests 
upon  obligation,  contract,  or  other  security,  for  payment;  and 
not  only  rights  presently  vested  and  capable  of  immediate  re- 
duction to  possession,  but  those  which  are  contingent  upon 
some  event  or  reversionary  upon  some  prior  interest.1  Debts 
owing  the  wife,  arrears  of  rents,  of  profits,  and  of  income,  also 
outstanding  loans,  are  plainly  choses  in  action.2  Money  due  on 
mortgage  is,  before  foreclosure,  a  chose  in  action,  and  even 
though  lent  before  coverture  with  covenants  running  to  the 
wife's  heirs  or  executors,  it  must  follow  the  usual  rule.3  So  are 
bonds  and  certificates  of  stock.4  Income  of  a  chose  in  action  is 
as  much  a  chose  as  the  principal  itself;  and  according  to  the 
ordinary  rule  the  wife  becomes  entitled  to  it  by  survivorship.5 
A  devise  of  land  to  be  sold,  and  proceeds  to  be  divided  among 
certain  persons,  gives  to  each  a  chose  in  action.6  Bills  of  ex- 
change and  promissory  notes,  unlike  many  choses  in  action  in 
being  legally  transferable  by  simple  indorsement,  are  now  con- 
sidered choses  in  action  of  a  peculiar  nature,  though  it  was  for- 
merly thought  that  they  vested  absolutely  in  the  husband  by 
marriage ; "  and  bank  checks,  certificates  of  deposit,8  and  public 
securities  of  a  negotiable  character  9  may  be  placed  in  the  same 
class.  Legacies  and  distributive  shares  are  sometimes  treated 
as  though  they  vested  absolutely  in  the  husband  without  reduc- 
tion into  possession ;  but  unquestionably  the  better  opinion  is 

404;  Moody  v.  Hemphill,  75  Ala.  268.  5  Wilkinson  v.  Charles-worth,  11  Jur. 

Reduction   during    the    minority  of   an  644. 

infant  husband  is  good,  though  he  dies  °  Smilie's  Estate,  22  Penn.  St.  130. 

before   majority.      Ware   v.    Ware,    18  7  Gaters  v.   Maddeiey,  6  M.  &  W. 

Gratt.    670.      As  to   reduction    by  the  423;    Nash  v.  Nash,  2   Madd.    133;    1 

husband  of  an  infant  wife,  see  Shanks  Roper,  Hus.  &  Wife,  211  ;  1  Bright,  Hus. 

v.  Edmondson,  2S  Gratt.  804.  &  Wife,  37  a,  38;  9  Jur.  827  ;  Phelps 

1  See  Bell,  Hus.  &  Wife,  52.  v.  Phelps,  20  Tick.  556;  Lenderman  v. 

2  1  Bright,  Hus.  &  Wife,  36;  Clapp  Talley,  1   Houst    523.     As  to  proceeds 
v.  Stoughton,  10  Pick,  463.  of  the  sale  of  a  wife's  dower  right,  see 

3  Bell,  Hus.  &  Wife,  52  ;  contra,  Tur-  14  Lea,  346. 

ner   v.   Crane,    1    Vera.    170;    Rees  v.  s  Rodgers  v.  Pike  County  Bank,  69 

Keith,  11  Sim.  388.  Mo.  560. 

4  Slaymaker  v.  Bank,   10  Penn.  St.  9  Such,  for  instance,  as  United  States 
373 ;  Wells  v.  Tyler,  5  Fost.  340 <  Cum-  bonds.     Brown  v.  Bokee,  53  Md.  155. 
mings  v.  Cummings,  143  Mass.  340. 

137 


§  84  THE   DOMESTIC   RELATIONS.  [PART   II. 

that  they  are  choses  in  action  (especially  if  do  decree  of  distribu- 
tion has  been  rendered,  or  the  estate  is  unsettled),  in  which 
case  the  creditor  of  the  husband  ought  not  to  be  allowed  to  at- 
tach them  before  the  latter  has  done  some  act  disaffirming  his 
wife's  title,  inasmuch  as  the  property  still  belongs  to  the  wife.1 
The  wife's  choses  in  action  must  not  be  confounded  with  her 
goods  or  specific  chattels  in  the  hands  of  third  parties,  which, 
unlike  her  choses  in  action,  vest  in  the  husband  absolutely  by 
the  marriage.2  Money  rights  or  claims  generally,  as  for  in- 
stance a  claim  for  damages  growing  out  of  a  tort  committed 
upon  the  person  or  character  of  the  wife,  fall  under  our  present 
head.3 

§  84.  Wife's  Personalty  in  Action  :  Reduction  into  Possession. 
—  What  acts  on  the  husband's  part  amount  to  an  appropriation 
of  his  wife's  choses  in  action,  or,  in  other  words,  constitute  reduc- 
tion into  possession  so  as  to  bar  her  rights  by  survivorship,  is  a 
doctrine  of  common  law  of  much  importance.  Mere  intention 
on  his  part  to  appropriate  is  not  sufficient.  The  purpose  must 
be  followed  by  some  positive  act  asserting  an  ownership.4  Nor 
is  actual  possession  of  the  chose  in  action  a  sufficient  reduction 
per  se,  for  the  husband's  intention  may  be  to  hold  it  in  the  right 
of  another.  Thus  he  may  take  the  property  in  trust  for  his 
wife ;  and  if  so,  he  is  accountable  like  any  other  trustee.5  So 
he  may  receive  it  as  a  loan  from  his  wife,  in  which  case  he  shall 
refund  it  like  any  other  borrower.  His  possession  simply  as 
her  managing  agent  or  executive  is  not  a  reduction.6  That 
reduction  into  possession  which  makes  the  chose  absolutely  as 

1  2  Kent,  Com.  185;  Schooler,  Tins,  process  by  the  husband's  creditors  after 

&  Wife,  §  150  and  cases  cited  :  Carr  v.  a  decree  of  distribution. 
Taylor,  LO  Ves.  Jr.  574,  578;  Lamphir         2  See  supra,  §  82 ;  1  Schouler,  Pers. 

v.  Creed,  8   lb.  509;  Palmer  v.  Trevor,  Prop.  32-37. 

1  Vern.  2*',]  ;  Sterling  v.   Sims,  72  Ga.  8  Anderson   v.  Anderson,   11    Push, 

51.     Bnt  even  in  Massachusetts,  where  327. 

the  doctrine  prevails  which  is  disap-  *  Blountr.  Bestland,  5  Ves.  Jr.  515. 
proved  in  the  text,  it  is  held  that  if  the  5  Baker  v.  Hall,  12  Ves.  Jr.  497; 
ind  die  before  judgment  in  the  Estate  of  Hinds,  5  Whart.  138;  May- 
suit  by  creditors,  his  wife's  survivorship  field  v.  Clifton,  3  Stew.  375;  Resor  v. 
is  not  barred.  Strong  v.  Smith,  1  Met.  Resor,  9  [nd.  347;  Bell,  Hus.  &  Wife, 
476.  Cf.  138  Mass.  58.  See  Parks  v.  57  ;  42  N.  J.  Eq.  594 ;  108  N.  C.  724. 
Cnshman,  9  Vt.  320,  which  allows  the  °  39  Fed.  Rep.  403. 
wife's  share  to  be  attached  in  trustee 

L38 


chap,  v.]    wife's  personal  property.        §  84 

well  as  potentially  the  husband's  is  a  reduction  into  possession, 
not  of  the  thing  itself,  but  of  the  title  to  it.1  Thus,  it  is  reduc- 
tion into  possession  to  collect  the  wife's  chose  and  then  inter- 
mingle the  proceeds  with  his  own  property  ; 2  or  to  have  stock 
which  was  hers  transferred  to  his  own  name,  and  then  control 
it.3  Constructive  possessions  are  not  favored  in  law  when  they 
tend  to  defeat  the  wife's  survivorship.  Yet  reduction  into 
possession  of  the  wife's  chose  in  action,  unexplained  by  other 
circumstances,  is  prima  facie  evidence  of  conversion  to  the 
husband's  use,  and  is  therefore  effectual.4  And  reduction  of 
a  fund  may  be  sufficient  upon  the  happening  of  a  condition 
annexed  to  it.5 

The  doctrine  of  reduction  into  possession  offers  many  very 
nice  distinctions,  involving  conflicting  rights  of  considerable 
magnitude.  Courts  of  equity,  which  have  taken  this  subject 
under  their  especial  control,  seem  to  lay  down  variable  rules; 
and  it  must  be  confessed  that  the  law  of  reduction  is  so  built 
upon  exceptions  that  one  may  more  readily  determine  what 
acts  of  the  husband  do  not,  than  what  acts  do,  bar  the  wife's 
survivorship.  Another  difficulty  in  dealing  with  this  subject 
appears  from  the  circumstance  that  personal  property  is  rapidly 
growing,  and  species  of  the  incorporeal  sort  are  developed  quite 
unknown  to  the  old  common  law  ;  while,  on  the  other  hand,  the 
doctrine  of  the  wife's  separate  estate,  under  the  influence  of 
equity  and  modern  legislation,  has  expanded  so  fast  as  to  fur- 
nish already  new  elements  of  consideration  for  most  of  the 
latest  reduction  cases,  threatening  to  extinguish  at  no  distant 
day  all  the  old  learning  on  the  subject,  even  before  its  leading 
principles  could  be  clearly  shaped  out  in  the  courts.6 

1  Strong,  J.,  in  Tritt's  Admr.  v.  numerous  cases  cited.  Various  acts 
Caldwell's  Admr..  31  Penn.  St.,  233.  suffice,  conclusive  of  the  husband's  in- 

2  Bridgman  v.  Bridgman,  138  Mass.  tention.  lb.  §§  154-156.  Reduction 
58.  into  possession   by  assignment  affords 

3  143  Mass.  340.  many  perplexing  points.   lb.  §157.    The 

4  Johnston  v.  Johnston,  1  Grant,  husband's  right  to  reduce  is  one  of  elec- 
Cas.  468.  tion.     76.  §  156.     There  may  be  reduc- 

5  Dunn  v.  Sargent,  101  Mass.  336.  tion  by  suit.     lb.  §  158.     The  husband's 

6  This  doctrine  of  reduction  into  voluntary  settlement  from  the  fund  will 
possession  is  set  forth  at  length  in  be  sustained  if  equitable.  34  S.  C.  401. 
Schouler,  Plus.  &  Wife,  §§  154-159,  with 

139 


§  85  THE   DOMESTIC   11ELATIONS.  [PART   II. 

§  85.  Wife's  Personalty  in  Action;  Wife's  Equity  to  a  Settle- 
ment. —  The  wife's  equity  to  a  settlement,  which  constitutes 
an  important  branch  of  the  English  chancery  jurisprudence,  is 
closely  connected  with  the  husband's  right  of  reduction  into 
possession.  Whenever  the  husband  or  his  representative  has 
to  seek  the  aid  of  a  court  of  chancery  in  order  to  recover  his  wife's 
property,  he  must  submit  to  its  order  of  a  suitable  settlement 
from  the  fund.  This  settlement,  which  is  made  upon  the  wife 
for  the  separate  benefit  of  herself  and  the  children  as  a  provision 
for  their  maintenance  and  comfort,  is  known  as  the  wife's  equity.1 
Thus  chancery,  by  a  stretch  of  power  somewhat  arbitrary,  inter- 
feres to  do  an  act  of  justice.  The  doctrine  seems  to  rest  upon 
two  grounds:  first,  that  whoever  comes  into  equity  must  do 
equity  ;  second,  that  chancery  is  the  special  champion  of  women 
and  children.2 

The  small ness  of  a  fund  is  no  bar  to  the  settlement.3  The 
court  exercises  a  liberal  discretion  in  making  an  award  to  wife 
and  children,  even  to  the  disadvantage  of  an  insolvent  husband's 
creditors.4  But  the  right  to  claim  it  is  personal  to  the  wife, 
may  be  barred  or  waived  because  of  her  acts  or  misconduct,  and 
applies  only  to  funds  which  have  fallen  into  possession,  or  are 
not  merely  reversionary.5 

The  wife's  right  of  equity  to  a  settlement  is  something  distinct 
from  her  right  of  survivorship;  that  is,  her  right  upon  her  hus- 
band's death  to  property  not  reduced  by  him;6  and  even  if  the 
husband  has  assigned  the  fund,  the  court  will  protect  such  equity 
upon  due  application.7  So,  too,  this  wife's  equity  applies  oidy 
to  property  which  but  for  the  settlement  would  become  her  hus- 
band's own;  the  allowance  should  not  be  made  out  of  property 

1  2  Kent,  Com.  139-143,  and  cases  distinctions,  see  Schouler,  Hus.  &  Wife, 

cited  :   1  Bright,  Huh.  &  Wife,  230-265;  £§  160-162;  33  Ch.  D.  220. 
2  Story,  Eq.  Juris.  §'635.  :;  Schouler,  IIus.  &  Wife,  §  161. 

-  Meals    v.    Meals,     l     Dick.    373;         4  Th. 
Peachey,    Mar.    Settl.    158,    159.     This         6  Schouler,  Hus.  &  Wife,  §§  161, 162. 

jurisdiction  appears  to  have  been  exer-  An  adequate  settlement  on  the  wife  may 

cised  from  the  earliesl  period.     Sturgis  bar  her  equity.     Tb.  §  H',2. 
v.  Champneys,  5  M.  &  C.  103,  per  Lord         o  Norris  v.  Lantz,  18  Md.  260;  Hall 

Chancellor   Cottenham.     \'<>r  the  doc-  v.  Hall,  4  Md.  Ch.  283. 
trine  "i"  the  wife's  equity  to  asettlemenl         7  Osborne  v.  Edwards,  3  Stock.  73. 
in  detail,  which  :ii-"  gives  rise  t<>  nice 

140 


CHAP.  V.]  WIFE'S    PERSONAL    PROPERTY.  §  86 

already  her  own  separate  estate.1  The  husband's  assignee  for 
valuable  consideration  takes  subject  to  the  wife's  equity,  although 
her  survivorship  may  have  been  barred  by  the  assignment;2  but 
the  wife's  antenuptial  debts  must  first  be  provided  fur.3 

§  86.  Personal  Property  held  by  "Wife  as  Fiduciary  ;  Wife  as 
Executrix,  &c.  —  Property  held  by  the  wife  in  a  representative 
capacity  at  the  time  of  marriage  cannot  vest  in  the  husband ; 
for  here  she  has  no  beneficial  interest  which  the  law  can  trans- 
fer to  her  husband.4  Any  other  rule  would  operate  a  fraud  upon 
creditors  and  cestuis  que  trust.  And  a  bailment  to  the  wife  is  a 
trust  in  this  sense.5  But  if  the  wife  be  executrix  or  administra- 
trix at  the  time  of  her  marriage,  the  husband  is  entitled  to  admin- 
ister in  her  right,  by  way  of  partial  offset  to  his  liability  for  her 
frauds  and  injuries  in  such  capacity.  As  incidental  to  this 
authority,  he  may  release  and  compound  debts,  and  dispose  of 
the  effects,  and  reduce  outstanding  trust  property  into  possession 
as  his  wife  might  have  done  before  coverture.6  He  is  account- 
able for  all  property  which  came  to  her  possession,  whether 
actually  received  by  him  or  not.7  A  married  woman  cannot 
become  executrix  or  administratrix  without  her  husband's  con- 
currence,—  so  long,  at  least,  as  he  remains  liable  for  her  acts;8 
nor  will  payments  made  to  her  in  such  capacity  without  his  assent 
be  valid.9     ft  is  to  be  generally  observed  in  cases  of  this  kind  that 

1  Alexander  v.  Alexander,  85  Va.  6  1  Bright,  Hus.  &  Wife,  39,40;  Jenk. 
353.  Rep.  79;    2   Bradf.  Sur.   153;   Keister 

2  Moore  v.  Moore,  14  B.  Monr.  259  ;  >\  Howe,  3  Ind.  268  ;  Clanssen  v.  La 
2  Story,  Eq.  Juris.  §  1412,  and  cases  Franz,  1  Iowa,  226;  Dardier  v.  Chap- 
cited.  "  In  McCaleb '  v.  Crichfield,  5  man,  L.  R.  1 1  Ch.  D.  442.  And  may 
Heisk.  288,  the  assignee  was  held  en-  foreclose  a  mortgage  with  his  eoexecu- 
titled  to  the  residuary  interest  under  a  trix.  Buck  v.  Fischer,  2  Col.  T.  709. 
will,  assigned  by  husband  and  wife  "'  Scott  v.  Gamble,  1  Stockt.  218. 
jointly,  no  proceedings  having  been  set  For  a  case  in  which  the  husband  put 
on  foot  by  the  latter  dnring  her  life  to  money  of  his  own  into  a  bank  where 
avoid  the  assignment  or  enforce  her  the  wife  had  an  account  as  executrix, 
equity.  see  Lloyd  i\  Fughe,  L.  R.  8  Ch.  88. 

?  Barnard  v.  Ford,  L.  R.  4  Ch.  247.  8  Administration  has    been    granted 

4  Co.  Litt.  351;  11  Mod.  178;  1  to  a  wife  living  apart  from  her  husband 
Bright,  Hus.  &  Wife,  39,  40.  under  a  deed  of   separation    with   apt 

5  Fullam  v.  Rose,  160  Penn.  St.  47.  provisions.  Goods  of  Ilardinge,  2  Curt. 
Where  a  woman  even  after   marriage  640. 

becomes  a  bailee  of  money  for  safe  keep-  9  I  Salk.  282  ;  Loyer  v.  Lover,  6  Jur. 
ing  she  cannot  setup  her  coverture  at  156;  Bubbers  v.  Hardy,  3  Curt.  50; 
the  present  day  to  bar  the  bailor.     lb.       cases  cited  in  2  Redf.  Wills,  78.     As  to 

141 


§  87  THE   DOMESTIC   RELATIONS.  [PART   II. 

the  right  of  disposition  which  the  husband  exercises  is  strictly 
the  right  of  performing  the  trust  vested  in  his  wife,  it  being  as- 
sumed that  she  cannot  perform  it  consistently  with  her  situation 
as  a  feme  covert.  His  position  is  a  fiduciary  one,  so  that  he  can- 
not purchase  from  a  coadministratrix  without  consent  of  all 
beneficiaries  in  interest.1 

By  marriage  with  a  female  guardian,  too,  the  husband  becomes 
responsible  for  the  moneys  with  which  she  may  then  or  after- 
wards during  coverture  be  chargeable  in  such  capacity,  —  the  re- 
sponsibility extending  while  she  continues  to  act,  whether  it 
were  proper  for  her  so  to  continue  or  not.2 


CHAPTER  VI. 


EFFECT    OF    COVERTURE   UPON   THE   WIFE'S    CHATTELS   REAL   AND 
REAL    ESTATE. 

§  87.  Husband's  Interest  in  Wife's  Chattels  Real,  Leases,  &c. 
—  Chattels  real,  such  as  leases  and  terms  for  years,  have  many 
of  the  incidents  of  personal  property.  But  as  between  husband 
and  wife  they  differ  from  personal  chattels.  The  title  acquired 
therein  by  the  husband  is  of  a  somewhat  anomalous  nature;,  for 
upon  them  marriage  operates  an  executory  gift,  as  it  were,  the 
husband's  title  being  imperfect  unless  he  does  some  act  to  ap- 

the  indorsement  of  a  note  payable  to  1  Pepperell  v.  Chamberlain,  27  W. 
the  wife  as  administratrix",  see  Roberts  R.  410.  An  administrator  cannot  sne 
V.  Place,  18  N.  II.  183.  And  see  Mur-  in  his  representative  character  upon 
phree  I  Singleton,  37  Ala.  412.  Stat-  contracts  made  after  the  deatli  of  the 
utes  sometimes  require  the  husband  to  intestate  merely  in  the  course  of  carry- 
join  in  the  wife's  bond  as  executrix,  ing  on  the  intestate's  business.  Hence 
and  otherwise  rary  the  rule  of  the  text,  the  husband  must  sue  alone  for  goods 
Bee  S<  honler,  Hus.  &  Wife,  Appendix,  supplied  by  husband  and  wife  in  carry- 
See  Airhart  v.  Murphy,  32  Tex.  181;  ing  on  the  business  of  the  wife's  father, 
\  v.  Jackson,  45  Miss.  397.  whose  administratrix  the  wife  was ;  and 
Wife  made  ol<  executrix  with  her  hus-  the  joinder  of  the  wife  is  improper. 
band  /<  rt  Stewart,  56  Me.  Bolingbroke  v.  Kerr.  L.R.  1  Ex.  222. 
800.  As  to  effect  on  chattels  real  where  -Allen  v.  McCullough,  2  Heisk. 
wife  is  executrix,  -•  •■  nlBopoat,  §  87.  174. 
142 


CHAP.  VI.]  WIFE'S    CHATTELS    HEAL,    ETC.  §  87 

propriate  them  before  the  wife's  death.  He  may  sell,  assign, 
mortgage,  or  otherwise  dispose  of  his  wife's  chattels  real  with- 
out her  consent  or  concurrence ; 1  excepting  always  such  prop- 
erty as  she  may  hold  by  way  of  settlement  or  otherwise  as  her 
separate  estate. 2  Chattels  real,  unappropriated  during  cover- 
ture, vest  in  the  wife  absolutely,  if  she  be  the  survivor.  In  all 
these  respects  they  resemble  choses  in  action.  But  if  the  hus- 
band be  the  survivor,  such  chattels  will  belong  to  him  jure 
niariti,  and  not  as  representing  his  wife.  And  in  this  respect 
they  resemble  choses  in  possession. 

As  to  the  wife's  chattels  real,  therefore,  husband  and  wife  are 
in  possession  during  coverture  by  a  kind  of  joint  tenancy,  with 
the  right  of  survivorship  each  to  the  other ;  not,  however,  like 
joint  tenants  in  general,  but  rather  under  the  title  of  husband 
and  wife;  since  husband  and  wife  are,  in  contemplation  of  law, 
but  one  person,  and  incapable  of  holding  either  as  joint  tenants 
or  tenants  in  common.3 

The  wife's  chattels  real  may  be  taken  on  execution  for  the 
debts  of  the  husband  while  coverture  lasts,  by  which  means  the 
title  becomes  transferred  by  operation  of  law  to  the  creditor, 
and  the  wife's  right,  even  though  she  should  survive  her  hus- 
band, is  gone.4  They  may  also  be  bequeathed  by  the  husband 
by  will  executed  during  marriage,  or  by  other  instrument  to 
take  effect  after  his  death,  —  with,  however,  this  result:  that  if 
the  wife  dies  first  the  bequest  will  be  effectual,  not  having  been 
subsequently  revoked  by  the  husband ;  while,  if  the  husband 
dies  first,  the  wife  will  take  the  chattel  in  her  own  right,  un- 
affected by  any  mere  will  which  he  may  have  made,  or  by  any 
mere  charge  he  may  have  created.5 

It  would  appear  that  any  assignment  of  a  chattel  real  by  the 

1  Co.  Litt.  46  c  .•  2  Kent,  Com.  134 ;  to  another  than  her  husband  to  act  as 
Sir  Edward  Turner's  Case,  1  Vera.  7 ;  agent  in  leasing  her  lands.  46  Mo. 
Whitmarsh  v.   Robertson,  1   Coll.  New    App.  1. 

Cases,    570.     As  to  what  are   chattels  3  2  Kent,  Com.  135;  Co.  Litt.  351  b; 

real,   see  1  Schouler,  Pers.  Prop.  §§  9,  Butler's   note   304  to   Co.  Litt.  lib.  3, 

20-44.  351,  a. 

2  Tullett  v.  Armstrong,  4  M.  &  C.  4  2  Kent,  Com.  134;  Miller  v.  Wil- 
395;  Draper's  Case,  2  Freem.  29;  Bui-  Hams,  1  P.  Wins.  258. 

lock  v.  Knight,  Ch.  Ca.  266.     Marriage  5  Co.  Litt.  351   a,   466;    Roberts  v. 

revokes  the  authority  given  by  a  woman     Polgrean,  1  H.  Bl.  535. 

143 


§  87  THE   DOMESTIC    RELATIONS.  [PART    II. 

husband  will  completely  appropriate  it,  even  though  made 
without  consideration.1  And  if  a  single  woman  has  a  decree 
to  hold  and  enjoy  lands  until  a  debt  due  her  has  been  paid,  — 
known  at  the  old  law  as  an  estate  by  elegit,  —  and  she  after- 
wards marries,  her  husband  may  make  a  voluntary  assignment 
so  as  to  bind  her.2  The  right  of  appropriating  the  wife's  chat- 
tels real  is,  therefore,  to  be  distinguished  from  the  right  of 
reducing  things  in  action  into  possession.  The  husband's  in- 
terest in  his  wife's  chattels  real  may  be  called  an  interest  in  his 
wife's  right,  with  a  power  of  alienation  during  coverture ;  and 
an  interest  in  possession,  since  such  chattels  are  already  in  pos- 
session, but  lying  in  action.3  As  the  husband  is  entitled  to 
administer  in  his  wife's  right  when  she  is  executrix  or  adminis- 
tratrix, he  may  release  or  assign  terms  for  years  or  other  chat- 
tels real  vested  in  her  as  such.4  But  if  he  be  entitled  to  a  term 
of  years  in  his  wife's  right  as  executrix  or  administratrix,  and 
have  the  reversion  in  fee  in  himself,  the  term  will  not  be 
merged ;  for,  to  constitute  a  merger,  both  the  term  and  the 
freehold  should  vest  in  a  person  in  one  and  the  same  right.5 

An  exception  to  the  husband's  right  by  survivorship  to  his 
wife's  chattels  real  occurs  in  case  of  joint  tenancy.  If  a  single 
woman  be  joint  tenant  with  another,  then  marries  and  dies,  the 
other  joint  tenant  takes  to  the  exclusion  of  her  husband  surviv- 
ing her  ;  for  the  husband's  title  is  the  newer  and  inferior  one.6 

When  the  husband  succeeds  to  his  wife's  chattel  real  upon 
surviving  her,  or  appropriates  it  during  coverture,  he  takes  it 
subject  to  all  the  equities  which  would  have  attached  against 
her.  In  other  words,  being  not  a  purchaser  for  a  valuable  con- 
sideration, he  can  claim  no  greater  interest  than  she  had. 
Thus,  where  the  wife's  chattel  interest  is  subject  to  the  pay- 
ment of  an  annuity,  the  husband  must  continue  to  make  pay- 

i  Cateret  v.  Paschall,  3  P.  Wraa.200.  6  Co.  Litt.  338  6;  1  Bright,  Hus.  & 

Bui    •■>   note  to  1  P,  Wms.  380.  Wife,  98,  and  cases  cited. 

-  Merriweather  v.  Brooker,  5  Litt.  6  Co.    Litt.    185  b.    Where,  during 

256;  Paschall  v.  Thurston,  2  Bro.  P.  C.  coverture,  a  lease  for  years  is  granted 

lo  to  the  wife,  adverse  possession,  which 

1  Mitford  i>.  Mitford,  9  Ves.  98.  commences  during  coverture,   may  be 

1    Arnold  V.  BidWOOd,  Cro.   JaC.  318;     treated  as  adverse  either  to  the  wife  or 

Thrustont  v.  Coppin,  W.  BL  801.  to  the  husband.     Doe  v.   Wilkius,  5 


Kev.  &  M.  435. 


144 


CHAP.  VI.]  WIFE'S   CHATTELS   REAL,   ETC.  §  88 

ment  so  long  as  the  incumbrance  lasts.  And  though  he  may 
not  in  all  cases  be  bound  on  her  covenant  to  make  new  leases, 
yet,  if  he  does  so,  the  equity  of  the  annuitant  will  attach  upon 
them  successively.1  Where  the  husband  survives  the  wife,  the 
common  law  vests  the  title  to  her  chattels  real  in  him  so  com- 
pletely that  he  need  not  take  out  letters  of  administration  on 
her  estate  to  secure  his  right.2 

§  88.  Wife's  Chattels  Real ;  Leases,  &c.  ;  Subject  continued. 
—  The  law  enables  the  husband  during  coverture  to  defeat  his 
wife's  interest  by  survivorship  by  an  absolute  alienation  or  dis- 
position of  the  whole  term,  either  with  or  without  considera- 
tion.3 And  the  same  rule  applies  to  the  wife's  trust  terms  as 
to  her  legal  terms.4  In  order  to  make  it  effectual,  the  right  of 
the  party  in  whose  favor  the  disposition  is  made  must  com- 
mence in  interest  during  the  life  of  the  husband  ;  but  it  is  not 
necessary  that  it  should  commence  in  possession  during  that 
period.  Thus  the  husband,  though  he  cannot  bequeath  these 
chattels  by  will,  as  against  the  wife's' right  by  survivorship,  may 
grant  an  underlease  for  a  term  not  to  commence  until  after  his 
death  ;  and  this  act  will  divest  the  right  of  the  wife  under  the 
original  lease  so  far  as  the  underlease  is  prejudicial  to  such 
right5  Nor  need  his  disposition  cover  the  whole  chattel,  since 
the  disposition  necessarily  operates  pro  tanto.Q  Nor  need  it  be 
absolute,  since  a  conditional  disposition  is  good  if  the  condition 
subsequently  takes  effect.7  And  the  law  enables  the  husband 
to  dispose,  not  only  of  the  wife's  interest  in  possession,  but  also 
of  her  possibility  or  contingent  interest  in  a  term,  unless  where 
the  contingency  is  of  such  a  nature  that  it  cannot  happen  dur- 


1  Moody  v.  Matthews,  7  Ves.  18.3  ;  correctly  reported  according  to  note,  1 
Rowe  v.  Chichester,  Amb.  719.     On  the  Bright,  Hus.  &  Wife,  99)  ;  Sir  Edward 
question  of  contribution  by  annuitants,  Turner's  Case,  1  Ch.  Ca.  307  ;  Packer 
see  Winslowe  v.  Tighe,  2  Ball  &  B.  204 ;  v.  Windham,  Prec.  in  Ch.  412. 
Hubbs  v.  Rath,  2  Ih.  553.  5  Grute  v.   Locroft,  Cro.  Eliz.  287  ; 

2  Bellamy,  Re,  25  Ch.  D.  620.     And  Bell,  Hus.  &  Wife,  104,  105. 

see  Standard  Paint  Co  v.  Mining  Co.,  6  Sym's  Case,   Cro.  Eliz.  33 ;  Loft- 

133  Penn.  St.  474.  ris's  Case,  lb.  276 ;  Riley  v.  Riley,  4  C. 

3  1   Bright,  Hus.  &  Wife,  98:  Grute  E   Green,  229. 

r.  Locroft,  Cro.  Eliz    287;    Jackson  v.  7  Co.  Litt.  46  b.     But  see  4  Vin.  Abr. 

McConnell,  19  Wend.  175.  50,  pi.  14. 

4  Tudor  v.  Samyne,  2  Vera.  270  (in- 

io  145 


§  88  THE   DOMESTIC    RELATIONS.  [PART    II. 

ing  his  life.1  A  distinction  is,  however,  made  between  cases 
where  the  disposition  is  intended  of  the  whole  or  of  part  of  the 
property,  and  where  it  is  intended  as  a  collateral  grant  of  some- 
thing out  of  it.  In  the  latter  case  the  transaction  will  not  hind 
the  wife ;  for  if  she  survive  her  husband,  her  right  being  para- 
mount, and  her  interest  in  the  chattel  not  having  been  dis- 
placed, she  will  be  entitled  to  it  absolutely  free  from  such 
incumbrance.2 

The  husband  may  by  other  acts  than  express  alienation  divest 
his  wife's  title,  and  defeat  her  rights  by  survivorship  in  her  chat- 
tels real.  Thus,  if  the  husband,  holding  a  term  in  right  of  his 
wife,  grant  a  lease  of  the  lands  covered  by  the  term,  for  the 
lives  of  himself  and  his  wife,  the  wife's  term  will  thereby 
merge,  and  her  right  in  it  be  defeated.3  Or  if,  while  in  pos- 
session, under  a  lease  to  himself  and  the  wife,  the  husband 
should  accept  from  the  lessor  a  feoffment  of  the  lands  leased, 
the  term  would  be  extinguished  and  the  wife's  right  along  with 
it  ;  for  the  livery  would  amount  to  a  surrender  of  the  term.4 

On  the  other  hand,  there  are  acts  by  the  husband,  which, 
although  they  amount  to  the  exercise  of  an  act  of  ownership, 
yet,  as  they  do  not  pass  the  title,  will  not  defeat  the  wife's 
right  by  survivorship.  An  instance  of  the  latter  is  that  of  the 
husband's  mortgage  of  his  wife's  chattels  real ;  or,  what  is  the 
same  thing  in  equity,  a  covenant  to  mortgage.  This  is  in  real- 
ity a  disposition  as  security,  and  until  breach  of  condition  the 
mortgagee  has  no  further  title.  But,  in  order  to  protect  the 
mortgagee's  rights,  equity  treats  the  mortgage  or  covenant  as 
good  against  the  wife  to  the  extent  of  the  money  borrowed ; 
that  once  paid,  the  chattels  will  continue  hers.5  After  breach 
u\'  condition,  the  mortgagee's  estate  becomes  absolute;  or,  at 
least,  he  can  make  it  so  by  foreclosure  ;  and  the  alienation  of 
tin:  term  being  then  completed  at  law,  the  wife's  legal  right  by 

1    Due  d.   Shaw  v.  Steward,   1    Ad.  &  *  Downing   v.   Seymour,    fro.   Eliz. 

I'd    .".<ni;   ]    Bright,   IIus.  &  Wife,  100.  912.     And  see  Lawes  v.   Lumpkin,   18 

And  Bee  Donne  '■.  Hurt,  2  Rnss.  &  My.  Md.  834. 

860.  5  Kates  v.  Dandy,  2  Atk.  207;  Bell, 

*  (',,     Lit*.  1-1   6;    I   Bright,  IIus.  &  IIus.   &    Wife,    107;    I    Bright,    IIus.  & 

Wife,  108.  Wife,  lor,.     As  to  the  wife's  disability 

B  2  Roll   Abr.  495  pi.  50.  to  mortgage,  see  101  l?enn.  St.  289. 

1  16 


CHAP.  VI.]  WIFE'S    REAL   ESTATE,    ETC.  §  89 

survivorship  is  defeated ;  subject,  however,  to  the  equity  of  re- 
demption, where  the  husband  lias  not  otherwise  disposed  of  that 
likewise.1  So,  too,  transactions,  not  constituting  mortgages  in 
the  ordinary  sense  of  the  term,  may  yet  be  so  construed  in 
equity  where  such  was  their  substantial  purport.  And  while 
the  intention  of  the  husband  to  work  a  more  complete  appropri- 
ation will  be  justly  regarded  by  the  court,  the  mere  circum- 
stance of  a  proviso  in  the  conveyance  for  redemption,  pointing 
to  a  mode  of  reconveyance  not  in  conformity  with  the  original 
title,  will  not,  it  seems,  debar  the  wife  from  asserting  her  rights 
by  survivorship.2 

§  89.  Wife's  Real  Estate  ;  Husband's  Interest.  —  Now,  as  to 
the  effect  of  coverture  on  the  wife's  real  estate.  By  marriage, 
the  husband  becomes  entitled  to  the  usufruct  of  all  real  estate 
owned  by  the  wife  at  the  time  of  her  marriage,  and  of  all  such 
as  may  come  to  her  during  coverture.  He  is  entitled  to  the 
rents  and  profits  during  coverture.  His  estate  is  therefore  a 
freehold  and  a  vested  estate  in  possession.  But  it  will  depend 
upon  the  birth  of  a  child  alive  during  coverture,  whether  his 
estate  shall  last  for  a  longer  term  than  the  joint  lives  of  himself 

1  See  Pitt  v.  Pitt,  T.  &  R.  180;  1  mented  upon.  The  husband's  criminal 
Prest.  on  Estates,  345,  acts  ;  such  as  attainder.    Co.  Inst.  351  a  ; 

2  Clark  i'.  Burgh,  9  Jur.  679.  And  4  Bl.  Com.  387 ;  Steed  v.  Cragli,  9  Mod. 
see  In  re  Betton's  Trust  Estates,  L.  R.  43.  So,  too,  his  alienage.  2  Bl.  Com. 
12  Eq.  553;  Pigott  v.  Pigott,  L.  R.  4  421 ;  4  Bl.  Com.  387.  See  post,  §  89. 
Eq.  549.  As  to  the  wife's  equity  for  Lord  Coke  considered  that  ejectment 
a  settlement,  however,  it  is  held  that  recovered  by  the  husband  in  his  own 
where  a  husband  mortgages  the  legal  name  would  work  appropriation  ;  but 
interest  in  a  term  of  years  belonging  to  he  was  probably  in  error.  See  Jacob's 
him  in  right  of  his  wife,  no  such  equity  note  to  1  Roper,  Hus.  &  Wife,  185  ;  Co. 
arises  on  a  claim  to  foreclose  this  mort-  Litt.  46  b  ;  4  Yin.  Abr.  50,  pi.  18.  Waste 
gage  against  the  husband  and  wife  as  operates  as  a  forfeiture  of  a  term.  Co. 
defendants.  Hill  v.  Edmonds,  15  E.  L.  Litt.  351.  And  finally,  the  husband's 
&  Eq.  280.  creditors  may  sell   the   wife's   chattels 

Among    the    miscellaneous    acts   of  real  on   execution,  and   by   their  own 

the    husband    which    will     defeat    the  act  determine  her   interest  altogether, 

wife's  survivorship  to  her  chattels  real,  Miles  v.  Williams,  1  P.  Wms.  258 ;  Co. 

are  the  following:    A   disseverance  of  Litt.  351.     But  it  is  held  that  the  wife's 

his  wife's   joint  tenancy  during   cover-  survivorship    is   not   defeated    by    such 

ture.     Co.  Litt.  185  b;  Plow.  Com.  418.  acts  of  her  husband  as  erecting  build- 

A n  award  of  the  term  to  the  husband,  ings   on   the    leasehold  premises;    and 

if  carried  into  effect.     Oglander  v,  Bas-  making   a   mortgage  sale,  or  lease   of 

ton,    1   Vern.  396  ;  note  of  Jacob  to  1  part  bars  the  wife  only  so  far.     Riley  v. 

Roper,  Hus.  &  Wife,  185,  and  cases  com-  Rilev,  4  C.  E.  Green,  229. 

147 


§  89  THE   DOMESTIC    RELATIONS.  [PART    II. 

and  wife,  or  not ;  that  is  to  say,  whether  he  acquires  the  right 
of  curtesy  initiate,  to  be  consummated  on  the  death  of  the  wife 
leaving  him  surviving.1  In  the  event  of  such  birth,  his  interest 
lasts  for  his  own  life,  whether  his  wife  dies  before  him  or  not. 
If  there  be  no  child  born  alive,  his  interest  lasts  only  so  long- 
as  his  wife  lives.  In  either  case,  he  has  not  an  absolute  interest, 
but  only  an  estate  for  life,  and  his  right  is  that  of  beneficial 
enjoyment.  When  his  estate  has  expired,  the  real  estate  vests 
absolutely  in  the  wife  or  her  heirs,  and  the  husband's  relatives 
have  no  further  concern  with  it.2 

"While,  therefore,  the  husband  has  the  beneficial  enjoyment 
of  his  wife's  freehold  property  during  coverture,  at  the  common 
law,  the  ownership  remains  in  the  wife.  Herein  her  right 
becomes  suspended,  not  extinguished,  by  her  marriage.  The 
inheritance  is  in  her  and  her  heirs. 

Consequently,  the  husband  may  collect  and  dispose  of  the 
rents.  He  may  also  sue  in  his  own  name  for  injury  to  the 
profits  of  his  wife's  real  estate,  as  where  growing  crops  are 
destroyed  or  carried  off;  for  this  relates  to  his  usufructuary  in- 
terest.3 But  for  injuries  to  the  inheritance,  such  as  trespass,  by 
cutting  trees,  burning  fences,  and  pulling  down  houses,  and  gen- 
erally in  actions  for  waste,  the  wife  must  be  joined  ;  and  if  the 
husband  dies  before  recovering  damages,  the  right  of  action  sur- 
vives to  the  wife.  And  if  the  wife  survives  her  husband,  she 
may  commence  such  suits  without  joining  his  personal  repre- 
sentatives.4    But  the  husband  cannot  prosecute  such  an  action 

1  Sic  jiusi,  c.  15,  Dissolution  by  from  the  husband's  debts  without  de- 
Death,  as  to  Curtesy.  stroying  his  marital  estate.     Bozarth  v. 

2  Co.  Litt.  351  a;  2  Kent,  Com.  130;     Largent,  128  111.  95. 

I  Bac.  Abr.  286 ;  Junction  Railroad  Co.  8  The   defendant    to  an   action    for 

v.  Harris,  '.>  End.  184;  Clarke's  Appeal,  forcible  entry  of  land  belonging  to  the 

T'.t  I'i'iin.  St,.  376;   Rogers  v.  Brooks,  30  wife  cannot  insist  upon  her  joinder  as 

Ark.  612.     The    husband's    rights  and  a  necessary  party.     Gray  v.  Dryden,  79 

liabilities  attach  to  property  bought  by  Mo.  106. 

himself  and  held  in  his  name  as  trustee  4  2  Kent,  Com.  131  ;  Wellor  v.  Baker, 

for   liis   wife,      l'liaris  v.    Leachman,   20  2    Wils.   42-'5,   424;     Heaver   r.    Lane,  2 

Ala.  662      l'<nt  not,  as  will  lie  seen  here-  Mod.  21  7;  15ac.  Abr.  tit.  Baron  &  Feme, 

after,  to  hi-  wife's  separate  real  estate  K.;  l  Chitt.  PI.  (6th  Am.  ed.)85;  1  Bl. 

While  the  general  effect  of  our  mari-  Com.  362;  Illinois,  &c.  R.  R.  Co.  >•. 

t:il  legislation  mux    in-  to  destroy  this  Grable,  46  111.  445;   Thacher  v.   l'hin- 

common  law  freehold  of  the  husband,  a  ney,  7  Allen,  146. 
statute  ! i j ; i -.  exempt  the  wife's  proper! j 
1  IS 


CHAP.  VI.]  WIFE'S    REAL   ESTATE,    ETC.  §  89 

alone  after  his  wife's  death  during  the  pendency  of  the  suit.1 
During  coverture  the  wife  cannot  sue  alone  with  reference  to 
her  lands.2  Husband  and  wife  are  properly  joined  as  plaintiff's 
in  a  bill  to  protect  and  secure  the  permanent  rights  and  inter- 
ests to  her  real  estate.3  It  follows  from  our  general  statement 
that  a  husband  has  no  right  to  grant  a  perpetual  easemeutin  his 
wife's  lands.4  But  the  husband  as  head  of  the  family  has  con- 
trol of  the  household  and  premises  where  they  reside,  though 
the  wife  be  the  owner.5 

Besides  the  rents  and  profits  during  coverture,  the  husband, 
if  the  survivor,  is  entitled  to  all  arrears  accrued  up  to  the  time 
of  his  wife's  death.  Such  property  is  not  treated  like  the  wife's 
choses  in  action,  not  reduced  to  possession.  Accordingly  he  may 
maintain  suit  after  coverture  to  recover  all  rents  and  profits 
which  had  accrued  while  coverture  lasted.  And  where  the 
wife  joins  her  husband  in  a  lease,  the  covenant  for  payment  of 
rent  is  for  the  husband's  benefit  alone  while  the  usufruct  con- 
tinues.6 But  it  would  appear  to  be  otherwise  where  rent  is 
reserved  to  husband  and  wife,  and  her  heirs  and  assigns.7  In 
all  cases,  emblements  or  growing  crops  go  to  the  husband  or  his 
representatives  at  the  termination  of  his  estate.8  This  rule  was 
extended  at  the  common  law  to  cases  of  divorce  causa  precon- 
tract's? But  it  does  not  apply  to  divorce  for  the  husband's 
misconduct  under  modern    statutes.10     The  husband's  lease  in 

1  Buck  ?'.  Goodrich,  33  Conn.  37.  6  1  Washb.  Real  Prop.  44  ;  Co.  Lift. 

2  Bannister  v.  Bull,  16  S.  C.  220.  351    b;   Jones   v.   Patterson,    11    Barb. 

3  Wyatt  v.  Simpson,  8  W.  Va.  394.  572;  Matthews  v.  Copeland,  79  N.  C. 
It  is  held  that  the  husband  can  sue  in-  493. 

truders  alone  for  digging  up  the  soil  and  7  Hill  v.   Saunders,  4  B.  &   0.529. 

carrying  it  away.     Tallmadge  r.  Gran-  The  wife  need  not    be  joined  in  such 

nis,  20  Conn.  296.     Or  generally  for  for-  suits  for  rent.     Clapp  v.  Stoughton,  10 

eibly  entering  the  premises.    Alexander  Pick.  463  ;  Beaver  v.  Lane,  2  Mod.  217; 

v.  Hard,  64  N.  Y.  228  ;  79  Mo.  106.  Shaw  v.  Partridge,  17  Vt.  626  ;  Edring- 

4  Such  as  a  railroad  right  of  way.  ton  v.  Harper,  3  J.  J.  Marsh.  360 ; 
Gulf  R.  v.  Donahoo,  59  Tex.  128.  Bailey  v.  Duncan,  4  Monr.  260. 

5  Upon  this  principle  the  husband  is  8  Reeve,  Pom.  Rel.  28,  and  cases 
liable  for  injury  to  a  third  person  by  an  cited;  Weems  v.  Bryan,  21  Ala.  302; 
animal  kept  on  the  premises.     Strouse  Spencer  v.  Lewis,  1  Houst  223. 

v.  Leipf  (1894),  Ala.     As  to  torts  upon  9  Orland's  Case,  5  Coke,  116  a. 

others  in  respect  of  the  wife's  land,  see  10  See  Vincent  i:  Parker,  7  Paige,  65, 

Flesh   v.    Lindsay,    115  Mo.    1;   supra,  per   Chancellor  Walworth;    Jenney   v. 

§§  74,  75.  Gray,  5  Ohio  St.  45. 

149 


§80 


THE   DOMESTIC    RELATIONS. 


[PART   II. 


right  of  bis  wife  operates  so  far  in  the  tenant's  favor  as  to  en- 
title the  latter  to  emblements.1  The  rule  is  the  same  whether 
the  husband  be  tenant  by  curtesy  or  not.  No  action,  therefore, 
can  be  maintained  by  the  wife  in  such  cases.  Where,  pending 
an  action  of  ejectment  brought  by  husband  and  wife  to  recover 
possession  of  land  to  which  they  were  entitled  in  right  of  the 
wife,  the  husband  dies,  the  right  to  the  rent  current  and  in 
arrear,  and  also  to  damages  for  waste,  survives  to  the  wife ;  and 
as  to  rents  accruing  after  the  wife  dies  also,  these  go  to  her 
heirs  and  devisees.2 

The  husband's  interest  in  his  wife's  real  estate  is  liable  for 
his  debts,  and  may  be  taken  on  execution  against  him.  But 
nothing  more  than  the  husband's  usufruct  is  thereby  affected  ; 
nor  can  the  attachment  or  sale  affect  the  wife's  ultimate 
title.3 

A  husband's  life  estate  may  be  barred  by  a  statute  of  limi- 


1  Rowney's  Case,  2  Vern.  322; 
Gould  v.   Webster,   1    Vt.  409. 

2  King  v.  Little,  77  N.  C.  138. 

3  2  Kent,  Com.  131  ;  Babb  v.  Perley, 
1  Me.  G ;  Mattocks  v.  Stearns.  9  Vt. 
326;  Perkins  v.  Cottrell,  15  Barb.  446; 
Brown  v.  Gale,  5  N.  H.  416  ;  Canby  v. 
Porter,  12  Ohio,  79;  Williams  v.  Mor- 
gan, 1  Litt.  168;  Nichols  v.  O'Neill,  2 
Stockt.  88;  Montgomery  v.  Tate,  12 
Ind.  615;  Lucas  v.  Rickerich,  1  Lea, 
726;  Sale  v.  Saunders,  24  Miss.  24; 
Cheek  v.  Waldrum,  25  Ala.  152; 
Schneider  v.  Starke,  20  Mo.  269.  But 
see  Jackson  v.  Suffern,  19  Wend.  175. 
And  see  Rice  v.  Hoffman,  35  Md.  344, 
as  to  the  liability  extending  to  the  hus- 
band's interest  as  tenant  by  the  curtesy  ; 
also  128  111.  95.  The  rule  in  Massa- 
chusetts  is  to  allow  the   purchaser  to 

I  he  rents  and  profits  for  a  definite 
period,  or  the  whole  life  estate  at  an 
appraisal  of  the  value  founded  on  a 
proper  estimate  of  the  probability  of 
human  life.  But  where  the  whole  life 
estate  is  of  more  value  than  the  amount 
of  i  he  execution,  the  more  proper  and 
perhapt  the  only  mode  is  the  former. 
Litchfield  v.  Cadworth,  19  Pick.  23.  It 
hai  been  held  that  the  husband,  under 

150 


a  bona  fide  deed  of  separation,  without 
trustees,  executed  before  judgment, 
may  relinquish  to  his  wife  all  interest 
in  her  lands  and  thus  avoid  the  de- 
mands of  his  creditors  upon  the  prop- 
erty, even  though  an  annuity  be 
reserved  to  himself.  Bonslaugh  v. 
Bonslaugh,  17  S.  &  R.  361.  But  see 
Bowyer's  Appeal,  21  Penn.  St.  210. 
And  it  is  certain  that  the  sheriff's  deed 
cannot  convey  a  greater  interest  than 
the  defendant  has  at  the  time  of  attach- 
ment or  of  levy  and  sale.  Williams  v. 
Amory,  14  Mass.  20 ;  Johnson  v.  Payne, 
1  Hill,  111;  Rabb  v.  Aiken,  2  McC- 
Ch.  119.  Therefore,  where  a  statute 
allows  the  husband  a  distributive  share 
in  his  wife's  lands  in  the  event  of  his 
survivorship,  no  such  interest  passes  to 
the  purchaser  of  lands  sold  on  execution 
for  his  debts  during  her  life.  Starke 
v.  Harrison,  5  Rich.  7.  Since  the  hus- 
band's life  interest  is  liable  for  his  own 
debts,  it  is  liable  for  the  debts  of  the 
\\  ife  (I urn  s'l/n.  Moore  v.  Richardson,  37 
Me.  438.  And  it  is  held  in  Pennsylvania 
that  where  a  husband  has  conveyed  his 
life  estate  in  fraud  of  his  creditors,  they 
may  levy  upon  the  growing  crops. 
Stehtnan  v.  Huber,  21  Penn.  St.  260. 


CHAP.  VI.]  WIFE'S   REAL   ESTATE,    ETC.  §    90 

tations  like  other  freehold  interests.1  At  the  common  law, 
attainder  of  treason  or  other  felony  worked  a  forfeiture  or 
escheat  of  real  estate  to  the  government.  And  corruption  of 
blood  affected  the  inheritance  in  such  cases.  But  as  regarded 
the  wife's  real  estate,  nothing  more  could  be  taken  than  the 
husband's  life  interest ;  the  freehold  continued  in  the  wife  as 
before.  For  the  same  reason  where  the  wife  was  at  common 
law  attainted  of  felony,  the  lord  might  enter  to  the  lands  by 
escheat,  and  eject  the  husband  whenever  the  crown  had  had  its 
prerogative  forfeiture  of  a  year  and  a  day's  wraste.2  The  com- 
mon law  of  attainder  is  of  no  force  in  this  country  so  far  as 
forfeiture  and  corruption  of  blood  is  concerned ;  but  it  probably 
applies  to  the  husband's  life  interest  in  his  wife's  lands.3  Where 
the  husband  was  an  alien  he  could  not  acquire  an  interest  in 
his  wife's  real  estate  at  the  common  law.4  But  the  disability 
is  now  removed  in  great  measure  by  statute.5 

At  common  law,  too,  the  marital  rights  of  the  husband  do  not 
attach  to  realty  in  which  the  wife  has  only  a  remainder  or  rever- 
sion expectant  upon  the  termination  of  a  precedent  life  estate.6 
Mere  contingencies  of  the  wife,  which  cannot  happen  before  the 
death  of  either  spouse,  canuot  be  attached,  therefore,  by  creditors 
of  the  husband  ; '  nor  landed  expectancies  in  general  while  con- 
tinuing expectant.8     He  cannot  adjust  her  boundaries  alone.9 

§  90.  Wife's  Real  Estate  ;  Husband's  Right  to  Convey  or  Lease. 
—  The  husband  alone  has  power  at  common  law  to  bind  or 
alienate  the  wife's  lands  during  coverture.  This  right  lasts,  at 
any  rate,  during  their  joint  lives  (provided  the  parties  be  not  in 
the  mean  time  divorced)  ;  and  if  the  husband  gain  a  tenancy 
by  curtesy,  it  lasts  during  his  whole  life.     But  the  husband's 

1  Kibbie  v.  Williams,  58  111.  30.  49,  giving  statutory  changes.     And  see 

2  Bell,  Hus.  &  Wife,  149,  150 ;  2  Bl.  Bell,  Hus.  &  Wife,  151,  241.  Stat.  7  & 
Com.  253,  254.  As  to  the  wife's  right  8  Vict.  c.  66,  removes  disabilities  as  to 
of  dower  in  such  cases,  see  2  Bl.  Com.  dower  for  the  most  part. 

253,  and  notes  by  Cliitty  and  others.  6  Baker  v.  Flouruoy,  58  Ala.  650. 

3  See  Const.  U.  S.  Art.  III.  §  3;  V  Hornsby  v.  Lee,  2  Madd.  Ch.  16; 
also  State  constitutions.  Allen   v.  Scurry,   1    Yerg.  36;    Sale  v. 

4  Washb.  Real  Prop.  48,  and  cases  Saunders,  24  Miss.  24. 

cited;   Bell,   Hus.   &   Wife,   151;    Co.  8  Osborne  v.  Edwards,  3  Stockt.  73; 

Litt.  31  b;  Menvill's  Case,  13  Co.  293;  Baker  v.  Flournoy,  58  Ala.  650. 
2  Bl.  Com.  293  ;  2  Kent,  Com.  39-75.  9  53  Conn.  496. 

6  See  note  to  1  Washb.  Real  Prop. 

151 


§  90  THE   DOMESTIC    RELATIONS.  [PART   II. 

power  is  commensurate  with  his  estate.  He  cannot  incumber 
the  property  beyond  the  period  of  his  life  interest,  nor  prevent 
his  wife,  if  she  survives  him,  or  her  heirs  after  his  death,  from 
enjoying  the  property  free  from  all  incumbrances  which  he  may 
have  created.1  Under  the  ancient  law  of  tenures  the  husband 
could  transfer  the  property  so  as  to  vest  it  in  the  grantee,  sub- 
ject to  the  wife's  entry  by  writ  cui  in  vita ;  for  his  act  amounted 
to  a  discontinuance.  Statute  32  Hen.  VIII.  c.  28  was  remedial 
in  its  effect,  so  far  as  to  give  the  wife  her  writ  of  entry,  not- 
withstanding her  husband's  conveyance.  Copyhold  lands  fol- 
lowed a  different  rule,  not  being  considered  within  the  letter  or 
the  equity  of  this  statute.  But  by  the  more  recent  statutes  of 
3  &  4  Will.  IV.  c.  27  and  c.  74,  and  8  &  9  Vict.  c.  106,  fines 
and  recoveries  have  been  abolished  and  feoffments  deprived  of 
their  tortious  operation ;  and  it  is  enacted  that  no  discontinu- 
ance or  warranty  made  after  the  31st  day  of  December,  1833, 
shall  defeat  any  right  of  entry  or  action  for  the  recovery  of 
land.  At  the  present  day  there  is,  therefore,  no  mode  of  con- 
veyance in  the  English  law  by  which  the  husband  can  convey 
more  than  his  own  estate  in  his  wife's  lands.2 

These  latter  statutes  are  not,  per  se,  of  force  in  this  country, 
for  they  were  passed  in  England  after  the  colonization  of 
America.  But  the  same  result  has  been  very  generally  reached 
in  this  country  through  a  different  process.  In  Massachusetts, 
the  statute  of  32  Hen.  VIII.  is  still  in  force  as  a  modification 
and  amendment  to  the  common  law.3  In  other  States,  eject- 
ment or  other  summary  process  may  be  resorted  to.4  The  uni- 
versal doctrine,  whatever  may  be  the  form  of  remedy,  prevails. 
that  the  husband  can  do  no  act  nor  make  any  default  to  pre- 
judice his  wife's  inheritance.  And  while  his  own  alienation 
passes  his  life  estate,  it  fan  do  no  more;  but  the  wii'e,  notwith- 
standing, may  enter  after  his  death  and  hold  possession.5 

So  far  as  the  effect  of  the  husband's  lease  was  concerned,  the 

i  2  Kent,  ''"in    133.  N.  Y.  Kev.  Stats.  4th  ed.  vol.  2,  p.  303 f 

a  I  Brighl    FIub.S  Wife  I62-168,and  2  Kent,  Com.  L33  n. 

authorities  cited;   Bell,   Hus    &    Wife,         62    Kent,  Com.    133   n.;  1    Washb 

Norris,  11  Q.  B.  916.  Real    Prop.    279;    Butterfield   v.   Beall, 

Brnce  v.  Wood,  I  Met.  542.  3  [nd.  203;  Huff  v.  Price,  50  .Mo.  228; 

'  Miller  v.  Shackleford,  4  Dana,  264;  Jones  v.  Carter,  73  N.  C.  148. 

L52 


CHAP.  VI.]  WIFE'S    REAL   ESTATE,    ETC.  §  90 

statute  32  Hen.  VIII.  c.  28  changed  the  old  common  law.  By 
this  statute,  husband  and  wife  are  permitted  to  make  a  joint 
lease  of  the  wife's  real  estate  for  a  term  not  exceeding  three 
lives  or  twenty-one  years.  There  were,  however,  some  restric- 
tions placed  upon  the  operation  of  this  statute.  Thus,  it  was 
further  declared  that  things  which  lie  in  grant,  such  as  fran- 
chises, should  be  excepted ;  though  tithes  followed  the  general 
principle.  And  the  old  lease  must  have  been  surrendered  either 
in  writing  or  by  operation  of  law  within  one  year  from  making 
the  new  lease.  Property  in  possession  might  be  leased  under 
the  statute,  but  not  property  in  reversion.  The  lease  would 
not  exempt  the  tenant  from  responsibility  for  waste.  And  the 
rent  reserved  should  not  be  less  than  the  average  rent  of  the 
preceding  twenty  years.  This  statute  has  been  strictly  con- 
strued both  in  common-law  and  equity  courts  of  England.1 

But  the  husband's  lease  of  the  wife's  lands,  whether  alone  or 
jointly  with  her,  may  be  good  at  the  common  law,  though  not 
made  in  compliance  with  the  statute.  In  such  case  the  wife  may 
affirm  or  disaffirm  the  lease  at  the  expiration  of  coverture.  And 
the  same  right  maybe  exercised  by  her  issue,  or  by  others  claim- 
ing under  her  or  in  privity  with  her.  So,  too,  where  she  marries 
again  after  her  husband's  death,  her  second  husband  has  the 
privilege  of  election  in  her  stead.  But  one  who  claims  by 
paramount  title  to  the  wife,  as,  for  instance,  a  joint  tenant  sur- 
viving her,  cannot  exercise  this  right.2  And  the  general  prin- 
ciple is  that  a  husband  cannot,  without  his  wife's  consent, 
execute  a  lease  of  her  real  estate  so  as  practically  to  interfere 
with  the  ultimate  possession  and  enjoyment  which  the  law 
accords  to  her. 

Some  acts  of  the  wife,  on  being  released  from  coverture,  will 
amount  to  an  affirmance  of  her  husband's  informal  lease.  Thus 
acceptance  of  rent  from  the  tenant,  after  her  husband's  death, 

1  Bell,  Tins.  &  Wife,  179-181;  1  Agborow,  Cro.Jac.  417  ;  Anon.,  2  Dyer, 
Bright,  Hus.  &  Wife,  193-219;  Dar-  159.  See  also  Toler  v.  Slater,  L.  R.  3 
lington  v.  Pnlteney,  Cowp.  267.  As  to  Q.  B.  42,  where  the  lessee  was  held 
distraint  for  rent  by  the  wife  against  a  bound  on  his  covenant  to  pay  rent.  As 
lessee,  see  55  Md.  319.  to  ejectment  of  a  tenant  for  breach  of 

2  Bell,  Hus.  &  Wife,  175,  477;  Jef-  covenant  under  such  joint  lease,  see  126 
frey   v.    Guy,   Yelv.    78 ;    Smalman   v.  Penn.  St.  470. 

153 


§  91  THE   DOMESTIC    RELATIONS.  [PART   II. 

will  confirm  the  lease.1  But  parol  leases  of  the'wife's  real  estate 
are  affected  by  the  statute  of  frauds ;  and  not  even  acceptance  of 
rent  can  bind  the  wife  surviving :  the  lease  will  be  treated  as 
utterly  void  at  the  husband's  death,  and  not  voidable  only.2 
Whether  acceptance  of  rent  by  the  wife  after  the  husband's 
death  would  confirm  a  lease  in  writing,  made  by  the  husband 
alone,  is  a  question  on  which  the  authorities  are  not  agreed.3 
A  distinction,  however,  is  sometimes  made  between  leases  for 
life  and  leases  for  terms  of  years,  when  made  by  the  husband 
alone.  The  former,  it  is  said,  being  freehold  estates  and  com- 
mencing by  livery  of  seisin,  could  only  be  avoided  by  entry ; 
while  the  latter  became  void  absolutely  on  the  husband's  death. 
But  according  to  the  better  authority  both  kinds  of  leases  follow 
the  same  principle,  and  are  not  void  but  voidable  at  the  hus- 
band's death.4 

§  91.  Wife's  Real  Estate,  Husband's  Mortgage,  Waste,  &c. — 
The  husband's  mortgage  of  his  wife's  real  estate  is  effectual  to 
the  same  extent  as  his  absolute  conveyance ;  that  is  to  say,  it 
will  operate  upon  his  full  life  estate  or  the  joint  life  estate  of 
himself  and  his  wife,  as  the  case  may  be,  and  no  further.  His 
lease  of  the  wife's  lands  for  a  term  of  years,  for  the  purpose 
of  creating  an  incumbrance  in  the  nature  of  a  mortgage,  is 
treated  in  equity  as  a  mortgage ;  and  the  wife's  acceptance  of 
rent  after  his  death  cannot  make  such  a  lease  other  than 
void  on  the  termination  of  his  life  estate.5  Nor  should  a  hus- 
band acquire  a  tax-title  to  his  wife's  lands ;  for  it  is  impolitic 


1  Doe  v.  Weller,  7  T.  R.  478.  5  Bell,  Hus.  &  Wife,  193, 194  ;  Good- 

-  Hell,  Hus.  &  Wife,  178.     And  see  right  v.  Straphan,  1  Cowp.  201  ;  Dry- 

Winstel]  v.  Ilehl,  6  Bush,  58.  butter  v.  Bartholomews,  2  P.  Wins.  127. 

3  Bell,  Hus.  &  Wife,  177,  and  cases  The  husband's  mortgage,  in  this  country 

cited;   Preamble  to  Stat.  32  Hen.  VIII.  also,  passes  only  his  life  estate,  under  the 

c.  28  ;  Cro.  Jac.  332;   Bac.  Ahr.  Leases,  like  circumstances.     Miller  v.  Shackle- 

C.  1.    See  2  Saund.  180,  n.  10;  Pro.  ford,  3  Dana,  291  ;  Barber  v.  Harris,  15 

Ahr.  Acceptance,  1  ;  Vangh.  40;  Good-  Wend.   615;  Railroad  Co.  v.  Harris,  9 

right  o.  8traphan,  1  Cowp.  201  ;  Hill  v.  Ind.   184;  Kay  v.  Whittaker,  44  N.  Y. 

Saunders,  2  Bing.  112.  565 ;   17  R.  I.  272.    As  to  the  wife's 

1  Bell,  Hus.  &  Wife,  177,  178,  and  remedy  for  waste,  see  Schouler,  1 1  us.  & 

cited;   contra,    notes   to   2    Kent,  Wife,  §  171;  1  Wash.  Real  Prop.  118- 

Com,    133,   and    authorities    referred    to,  124. 

including  note  "i   Serjeant  Williams  to 
Wotton  v.  Hele,  2  Sannd.  180. 
154 


CHAP.  VI.]  WIFE'S    REAL   ESTATE,   ETC.  §  92 

to  allow  him  to  antagonize  her  ultimate  rights  for  his  own 
advantage.1 

§  92.  Wife's  Real  Estate  ;  Spouse's  Dissent  to  Purchase,  &c.  ; 
Conversion. — The  husband  may  dissent  from  a  purchase,  gift, 
or  devise  of  real  estate  to  his  wife  during  coverture ;  since 
otherwise  he  might  be  made  a  life  tenant  to  his  own  disadvan- 
tage. But  by  such  dissent  he  cannot  and  ought  not  to  defeat 
her  ultimate  title  as  heir.2  Nor  on  principle  should  he  be  per- 
mitted to  dissent  to  any  purchase,  gift,  or  devise  to  the  wife's 
separate  use,  by  the  terms  of  which  his  own  interest  as  life  ten- 
ant is  legally  excluded.  Subject  to  the  husband's  dissent  and 
the  wife's  disagreement  after  her  coverture  ends,  a  conveyance 
to  the  wife  in  fee  is  always  good  ;3  and  where  a  married  woman 
has  legal  opportunity  to  disclaim  and  does  not,  she  will  be 
deemed  to  have  elected  to  take.4 

If  the  real  estate  of  the  wife  be  converted  into  personalty 
during  her  life  by  a  voluntary  act  of  the  parties,  the  proceeds 
become  personal  estate,  and  the  husband  may  presumably  reduce 
into  his  own  possession  or  otherwise  take  the  proceeds.  This 
principle  is  known  as  conversion.5  But  where  conversion  takes 
place  by  act  of  law,  independently  of  husband  and  wife,  the 
rule  is  not  so  clear.6     On  the  other  hand,  the  rule  is  announced 

1  Laton  v.  Baleom,  64  N.  H.  92.  vested  in  her  own  name  elsewhere,  if 

2  Co.  Litt.  3  a;  1  Dane,  Abr.  388  ;  she  means  to  guard  her  right  against  the 
4  lb.  397  ;  1  Washb.  Real  Prop.  280.  husband's  legal  appropriation  of  the 
As  to  title  given  to  the  husband  by  mis-  fund.  Woodruff  v.  Bowles,  104  N.  C. 
take  for  the  wife,  see  27  Kans.  242.  197.     The  husband  agreeing  to  do  this, 

3  Co.  Litt.  3  a,  356  b;  2  Bl.  Com.  the  wife's  right  to  the  new  fund  is 
292,  293  ;  2  Kent,  Com.  150.  The  wife's  favored  against  his  creditors.  lb. ;  123 
privilege  of  disagreement  to  purchase  Ind.  126.     And  see  c.  14. 

extended  to  her  heirs.     lb.  6  Graham  v.  Dickinson,  3  Barb.  Ch. 

4  She  cannot  of  course  elect  to  take  170.  In  this  case,  Flanagan  '•.  Flana- 
and  then  repudiate  the  recited  terms  of  gan,  1  Bro.  C.  C.  500,  appears  to  have 
the  conveyance  to  her.  Fort  v.  Allen,  been  disapproved.  In  New  York,  how- 
109  N.  C.  183.  ever,  it   is  held  that  where    the   real 

5  Hamlin  v  Jones,  20  Wis.  536 ;  estate  of  a  married  woman  has  been 
Watson  v.  Robertson,  4  Bush,  37  ;  Till-  converted  into  personalty  by  operation 
man  v.  Tillman,  50  Mo.  40 ;  Sabel  v.  of  law  during  her  lifetime,  it  will  be 
Slingluff,  52  Md.  132  ;  Humphries  v.  disposed  of  by  a  court  of  equity,  after 
Harrison,  30  Ark.  79;  Schouler,  Hus.  her  death,  in  the  same  manner  as  if  .she 
&  Wife,  §  156.  The  wife  ought,  in  case  had  herself  converted  it  into  personal 
of  a  sale  of  her  real  estate,  to  require  property  previous  to  her  death.  G ra- 
the proceeds  to  be  kept  apart  and  in-  ham  v.   Dickinson,   3   Barb.   Ch.    170. 

155 


THE   DOMESTIC   RELATIONS. 


fPART    II. 


that  where  a  married  woman  is  entitled  to  a  legacy,  and  land  is 
given  her  in  lieu  thereof,  the  husband  having  effected  no  prior 
reduction  of  the  legacy,  it  is  to  be  held  as  hers  and  for  her  sole 
benefit.1  And  it  is  held  that  land  purchased  by  a  married 
woman  with  the  proceeds  of  a  legacy  which  the  husband  has 
declined  to  reduce  into  possession  is  not  liable  for  the  husband's 
debts.2 

§  93.  Wife's  Real  Estate  ;  Husband's  Agreement  to  Convey.  — 
By  the  old  law  of  England  it  appears  that,  if  a  husband  agreed 
to  convey  real  estate  belonging  to  his  wife,  he  might  be  com- 
pelled to  execute  the  contract  by  getting  her  to  levy  a  fine.8 
This  rule  no  longer  holds  good  in  that  country.4  Even  where 
the  agreement  has  been  made,  not  by  the  husband,  but  by  the 
wife  herself  before  her  marriage,  the  agreement  cannot  now  be 
enforced  against  the  wife.5  But  it  is  nevertheless  binding  upon 
the  husband  ;  though,  where  the  purchaser  has  not  been  misled, 
the  husband  cannot  be  made  to  convey  his  partial  interest  and 
submit  to  an  abatement  of  the  price,  because  of  the  wife's  re- 
fusal to  convey  her  real  estate  which  he  and  she  had  promised 
to  convev.6 


So,  too,  in  some  States,  conversion  of 
real  estate,  under  partition  proceed- 
ing, into  personalty,  has  been  held 
complete  where  equity  decreed  parti- 
tion, and  the  wife  died  after  a  final 
confirmation  of  the  sale  in  court,  all 
terms  of  sale  having  been  complied 
with,  ami  all  formalities  duly  observed. 
Jones  v.  Hummer,  20  Md.  416;  Cow- 
den  v.  Pitts,  -j.  Baxt.  59.  Where  an  ad- 
ministrator's sale  of  the  wife's  land  is 
irregular,  the  husband  cannot,  apart 
from  the  wife,  confirm  it,  even  though 
he  ha-  received  the  purchase-money. 
Kempe  v.  Pintard,  32  Miss.  32 1.  See 
also  Ellsworth  '■.  Hinds,  5  Wis.  613; 
Osborne  v.  Edwards,  3  Stockt.  73.  But 
•and  may  demand  and  reduce 
into  possession  hi-  wife's  legacy,  even 
though    it    he    made   payable,   by  the 

II,  from  proceeds  of  I  he  sale 

of  i he  i.  stator'a  n  al  estate.  Thomas 
r.  Wood,  I  .Md.  Ch.  296.  Conversion 
tab      place    where    husband    and    wife 

356 


convey  to  trustees  to  sell  and  dispose 
for  payment  of  debts,  balance  to  be 
paid  them  as  they  shall  direct  or  ap. 
point.  Siter  v.  McClanachan,  2  Gratt. 
80.     And  see  post,  c.  14. 

1  A  case  of  this  sort  was  lately  de- 
cided in  Pennsylvania.  Davis  v.  Davis, 
40  Penn.  St.  342.  But  see  Davis's  Ap- 
peal, 60  Penn.  St.  118. 

2  Coffin  v.  Morrill,  2  Fost  352.  And 
see  Sims  v.  Spalding,  2  Duv.  121.  See 
further  incidents,  Schouler,  Hus.  & 
Wife,  §  1 72. 

8  2  Bright,  Hus.  &  Wife,  47 ;  Macq. 
Hus.  &  Wife,  32. 

4  Frederick  v.  Coxwell,  3  V.  &  J. 
514;  Emery  v.  Ware,  8  Ves  505;  2 
Story,  Eq.  Juris.  §§  49-53;  Thayer  v. 
Gould,  1  Atk.  617;  1  Amb.  495."  But 
see  Davis  v.  Jones,  4  B.  &  P.  267. 

6  Per  Lord  Ch.  Tottenham,  Jordan 
/'.  Jones,  2  Phill.  170  ;   Ivowley  ».  Adams, 

6  E.  L.  &  Eq.  124. 

e  Tothill,  106  j   Hall  v.  Hardy,  3  P. 


CHAP.  VI.]  WIFE'S   REAL    ESTATE,    ETC.  §  94 

§  04.  Wife's  Agreement  to  Convey  ;  Her  Conveyance,  Mort- 
gage, &c,  under  Statutes.  —  A  mere  agreement  by  a  feme  covert 
for  the  sale  of  her  real  estate,  the  s;ime  not  being  her  separate 
property,  cannot  be  enforced  at  law  or  in  equity  against  her,1 
nor  does  her  mere  contract  estop  her  from  asserting  title  or  jus- 
tify a  suit  against  her  for  specific  performance.  Sugden  con- 
siders it  doubtful  whether  even  a  married  woman,  having  a 
power  of  appointment,  can  thus  bind  herself.2  But  modern 
statutes,  which  commit  the  wife  to  convey  with  the  observance 
of  certain  formalities,  often  permit  her  generally  to  contract, 
to  convey,  and  to  incumber  her  lands.3 

Under  the  modern  statute  of  3  &  4  Will.  IV.  c.  74,  which 
took  effect  in  England  from  the  end  of  the  year  1833,  married 
women  are  permitted  to  alienate  or  incumber  their  real  estate 
by  conveyances  executed  with  their  husbands  pursuant  to  its 
provisions.  This  important  law,  with  its  later  modifications, 
unfettered  property  which  had  long  been  fast  bound.4  The 
statute  requires  the  concurrence  of  the  husband  in  such  con- 
veyances ;  also  that  the  wife  shall  make  an  acknowledgment 
before  certain  judicial  officers  designated  by  the  act,  apart  from 
her  husband,  to  the  effect  that  her  own  consent  is  freely  and 
voluntarily  given.5     Specific  performance,  where  the  wife  fails 

Wins.    187;    Morris    v.    Stephenson,   7  owned   by  her  for  another  tract,  and 

Ves.  474  ;  Castle  v.  Wilkinson,  L.  R.  5  give  a  mortgage  on  the  latter  to  equal- 

Ch.  534.  ize  the   exchange,   hut  after  the  exe- 

1  Macq.  Hus.  &  Wife,  32 ;  Emery  v.  cution  of  the  deed  to  her,  refused  to 
Ware,  5  Ves.  846;  Sug  V.  &  P.  11th  acknowledge  the  mortgage,  a  court  of 
ed.  230 ;  Parks  v.  Barrowmau,  83  Ind.  equity,  while  admitting  that  there  was 
561.  But  see  as  to  the  effect  of  modern  no  way  to  compel  her,  charged  the  land 
State  legislation  in  this  respect,  146  with  the  amount  in  recognition  of  the 
Penn.  St.  444  ;  contra,  101  Mo.  550.  contract.  Burns  v.  McGregor,  90  N.  C. 
Specific  performance  may  he  decreed  in  222. 

a  case  of  equitahle  separate  estate.     104  3  As  to  statutes  permitting  a  wife  to 

Mo.  349  ;  53  Ark.  511  ;  §  58,  supra.  execute  a  power  of  attorney  to  convey 

2  Sug.  V.  &  P.  11th  ed.  231.     And  land,  see  Stimson,  §  6506. 
see  §  94.     She  certainly  cannot  in  some  4  8  &  9  Vict.  c.  106. 

States.     Kennedy    v.   Ten    Broeck,    11  5  See  Macq.  Hus.  &  Wife,  28-32 :  lb. 

Bush,   241.     But  the   wife  cannot  use  Appendix,   1-47,  where  the  provisions 

her  privilege  in   this  respect  unfairly,  of  this  act,  the  rules  of  court  made  in 

where  the  purchaser  has  become  bound  pursuance,  and  leading  decisions  on  the 

on   his   part.     See   Cross   v.  Noble,  67  construction   of    different   sections   are 

Penn.  St.  74.     Where  a  married  woman  fully  given.     And  see  In  re  Powling, 

agreed  to  exchange  a  parcel  of  laud  18  C.  B.  n.  s.  233.     We  have  not  thought 

157 


9-1 


THE   DOMESTIC   RELATIONS. 


[PART   II. 


to  execute  in  conformity  with  the  statute,  will  not  be  enforced 
against  her.1 

In  this  country  the  custom  of  a  wife's  joining  her  husband 
in  a  deed  of  conveyance  of  her  lands  has  prevailed  from  a 
very  early  period.  In  most,  if  not  all,  of  the  States,  there 
are  statutes  existing  as  to  the  mode  of  execution,  which  con- 
template the  joinder  of  husband  and  wife  in  the  convey- 
ance, and  an  acknowledgment  by  one  or  both  of  the  parties.2 
Some  of  the  States  require  a  separate  acknowledgment  of  the 
wife  apart  from  her  husband,  and  even  a  privy  examination  by 
the  magistrate,  so  as  to  make  sure  that  she  is  acquainted 
with  the  contents  of  the  deed,  and  acts  freely  and  under- 
standing^ ;  but  in  this  and  other  respects  the  laws  are  not 
uniform.  There  is  less  formality  in  general  than  under  the 
English  statute.  Thus,  then,  does  the  wife  pass  title  to  her  real 
estate. 

And  since,  in  the  tenure  of  lands  and  the  mode  of  convey- 
ance, the  law  in  this  country  has  always  varied  considerably 
from  that  of  England,  the  rights  of  married  women  in  other 
respects  may  be  different.3     But  following  the  English  doctrine, 


it  worth  while  to  embody  them  in  this 
work,  as  they  have  only  a  local  appli- 
cation. There  are  many  cases  con- 
stantly arising  in  the  English  courts 
as  to  the  interpretation  of  this  statute, 
with  its  amendments,  hut  they  seem 
chiefly  confined  to  the  effect  of  the 
wife's  acknowledgment.  But  as  to  the 
extent  of  this  right,  see  23  Ch.  1).  181. 
Previous  to  the  statute  of  3  &  4  Will. 
IV.  c.  74,  the  wife  could  convey  her  in- 
nh  by  levying  a  fine,  which,  as 
well  as  suffering  recoveries,  is  abol- 
ished by  that  statute.  1  Washb.  Heal 
Prop.  280;  i  Wins.  Real  Prop.  88.  See 
later  Aci  15  and  46  Vict.  <■.  39  as  to  ac- 
knowledgment (1882)  ;  35  Ch.  D.  345. 

'  Cahill  v.  Cahill,  «  App.  Cas.  420. 

-  i  Wnshb.  Real  Prop.  281,  and  cases 
Davey  o.  Turner,  l  Dall.  15; 
ii  v.  Gilchrist,  L5  Johns.  10'J; 
Page  6  Cush.  196 ;  2  Kent, 
Com.  151  155,  and  notes,  showing  cus- 
tom  in  different  States;    Albany  Fire 

158 


Ins.  Co.  v.  Bay,  4  Comst.  9 ;  Ford  v. 
Teal,  7  Bush,  156;  Mount  v.  Kester- 
son,  6  Cold.  452  ;  Tourville  v.  Piersou, 
39  111.  446 ;  Deery  r.  Cray,  5  Wall.  795 ; 
Alabama,  &c-  Ins.  Co.  v.  Boykin,  38 
Ala.  510:  Liudley  v.  Smith,  46  111.  523; 
Tubbs  o.  Gatewood,  26  Ark.  128.  The 
privy  examination  of  a  wife  for  ascer- 
taining that  she  executes  the  deed 
freely  and  without  undue  influence  or 
compulsion  of  her  husband  (which  is 
much  in  the  nature  of  a  judicial  act) 
is  a  feature  of  the  legislation  in  many 
States;  and  the  validity  of  her  convey- 
ance often  turns  upon  her  substantial 
compliance  with  such  a  requirement. 
S<  houler,  IIus.  &  Wife,  §  174;  121)  111. 
630  ;  Stiinson's  Am.  Stat.  Law,  §§  6500- 
6502. 

8  Thus  it  would  seem  that  the  joint 
assent  of  husband  and  wife  in  accept- 
ing a  title  should  be  as  good  as  in  grant- 
ing one.  1  Washb.  Real  Prop  280 
And  in  New  Hampshire  it  is  held  that  a 


CHAP.  VI.] 


WIFE  S    ItEAL   ESTATE,    ETC. 


§94 


the  wife's  executory  agreement  to  convey  real  estate,  whether 
expressed  by  bond  or  simple  instrument,  is  in  this  country  held 
void  in  the  absence  of  enabling  statutes,  like  her  general  con- 
tracts, though  made  with  her  husband's  assent ;  and  specific 
performance  cannot  be  enforced  against  her.1  Her  defective 
conveyance  of  her  land  cannot  be  treated  as  her  contract  to 
convey  it,  nor  as  an  estoppel.2  So  it  has  been  held  in  various 
States  that  the  wife  cannot,  either  separately  or  jointly  with 
her  husband,  execute  a  valid  power  of  attorney  to  convey  her 
lands.3  And  a  deed,  in  order  to  bind  the  wife's  heirs,  must 
have  been  delivered,  as  well  as  executed,  during  her  lifetime.4 
Nor  can  her  husband,  after  her  decease,  as  against  such  heirs, 
confirm  a  conveyance  which  was  fatally  irregular  on  her  part.5 
If  her  conveyance  be  void,  a  note  given  in  part-payment  of  the 
price  is  necessarily  without  consideration.6  She  may  recover 
the  land  defectively  conveyed,  and  often  without  either  re- 
paying the  purchase-money  or  compensating  for  the  vendee's 
improvements.7     Nor   will   the  law  coerce   her   into    fulfilling 


deed  to  &  feme  covert,  made  with  her  own 
and  her  husband's  assent,  vests  the  title 
legally  in  her.  Gordon  v.  Haywood,  2 
N.  H.  402.  See  Leach  v.  Noyes,  45 
N.  H.  364.  In  Pennsylvania,  if  land 
conveyed  to  her  be  incumbered,  it  passes 
to  her  subject  to  that  incumbrance. 
Cowton  v.  Wickersham,  54  l'enn.  St. 
302.  And  in  Vermont  it  has  been  held 
that  a  deed  of  gift  to  a  wife  during 
coverture,  if  accepted  by  her  husband, 
is  accepted  by  her,  and  that  her  refusal 
apart  from  him  is  of  no  consequence. 
Brackett  v.  Wait,  6  Vt.  411. 

1  2  Kent,  Com.  168;  Butler  v.  Buck- 
ingham, 5  Day,  492;  Dankelu.  Hunter, 
61  Penn.  St.  382  ;  Stidham  v.  Matthews, 
29  Ark.  650  ;  Moseby  v.  Partee,  5  Heisk. 
26;  Holmes  v.  Thorpe,  1  Halst.  Ch. 
415;  Lane  v.  McKeen,  15  Me.  304; 
Parks  i7.  Barrowman,  83  Ind.  561.  We 
make,  of  course,  no  reference  here  to 
the  wife's  separate  property,  or  to  her 
rights  under  what  are  known  as  the 
"  married  women's  acts,"  to  be  consid- 
ered post.  See  Blake  v.  Blake,  7  Iowa, 
46.     A   contract   to   convey,  made   by 


husband  and  wife,  may  be  good  against 
the  husband,  though  void  as  to  the 
wife.  Steffey  v.  Steffey,  19  Md.  5;  53 
Wis.  572;  Johnston  v.  Jones,  12  B. 
Monr.  326;  2  Kent,  Com.  168.  See 
supra,  §  60.  Upon  the  strict  assent  of 
husband  and  wife,  equity  has  some- 
times decreed  a  sale  under  the  wife's 
title-bond.  Moseby  v.  Partee,  5  Heisk. 
26.  As  to  the  wife's  ratification  of  the 
husband's  unauthorized  contract  for 
the  sale  of  her  land,  see  Ladd  v.  Hilde- 
brandt,  27  Wis.  135. 

2  Bagby  v.  Emberson,  79  Mo.  139; 
62  Tex.  623;  80  Mo.  179. 

3  Sumner  v.  Conant,  10  Vt.  1  ;  Gil- 
lespie v.  Worford,  2  Cold.  632  ;  Harden- 
burgh  v.  Lakin,  47  N.  Y.  109;  Holland 
v.  Moon,  39  Ark.  120. 

4  Thoenberger  v.  Zook,  34  Penn. 
St.  24;  Bonneson  v.  Aiken,  102  111. 
284.  But  see  Ackert  v.  Pults,  7  Barb. 
386;  Somers  v.  Pumphrey,  24  Ind.  231. 

5  Dow  v.  Jewell,  1  Fost.  470  ;  77  Mo 
452. 

6  Warner  v.  Crouch,  14  Allen,  163. 

7  85  N.  C.   184.      As'  to  the  wife's 

159 


§94 


THE   DOMESTIC   KELATIONS. 


[PART   II. 


her   agreement   by   granting   exemplary    damages    against   her 
husband.1 

So,  too,  in  this  country  a  married  woman  may  mortgage  as 
well  as  alienate  her  real  estate  by  joining  her  husband  similarly 
in  the  conveyance  and  making  due  acknowledgment ;  and  this, 
too,  though  no  consideration  pass  to  her  thereby.2  "Where  the 
wife  joins  her  husband  in  a  conveyance  in  the  nature  of  a  mort- 
gage, she  subjects  her  real  estate  to  the  risk  of  complete  aliena- 
tion by  foreclosure  for  her  husband's  debt,  or  by  sale  under  a 
power  of  sale  thereby  conferred.  She  is  estopped  by  her  own 
acts  from  denying  the  validity  of  the  mortgage.3  She  may 
covenant  that  scire  facias  may  issue  in  default  of  payment.4 
She  may  create  a  valid  power  in  the  mortgage  to  sell  in  default 
of  payment,5     And  in  general  she  may  convey  upon  condition 


agreement  to  purchase,  &e.,  see  "Robin- 
son v.  Robinson,  11  Bush,  174;  Staton 
v.  New,  49  Miss.  307 ;  Bedford  v.  Bur- 
ton, 106  U.  S.  338;  post,  e.  9. 

i  Burk  v.  Serrill,  80  Penn.  St.  413. 
In  some  States  the  separate  convey- 
ance of  a  married  woman,  or  her  ex- 
ecution jointly  with  her  husband,  but 
without  observance  of  the  full  statute 
formalities,  is  void.  But  in  others  such 
irregularities  are  not  held  fatal  to  the 
instrument,  and  she  is  furthermore 
bound  on  the  usual  principles,  even 
though  her  deed  be  separate  from  that 
of  her  husband  ami  executed  at  a  dif- 
ferent time.  The  question  in  such 
cases  is  mainly  one  of  statute  construc- 
tion ;  and  as  to  formalities,  a  distinction 
may  In-  taken  between  mere  errors  of 
description,  or  literal  informalities  of 
itioii  or  acknowledgment  on  the 
one  hand,  and,   on    the  other,   the    dis- 

regard  of  some  statutory  requirement, 
su  :i-   i"    substantially   violate    public 

policy,   BUch    for    instance,   as    her    sep- 
arate   acknowledgment,  or    her   decla- 
ration  before  the  magistrate  that  she 
•  d    freely   and    understandingly 

for  the  |nir|io-e  specified.  See  Scliouler, 
Jin-  &  Wife,  S§  175,  170,  when'  this 
Subject  of  Btatute  conveyances  by  hus- 
band and  u  ife  is  considered  at  lengl  h. 
100 


Uuder  various  modern  codes  the  wife 
may  convey  aud  acknowledge  as  feme 
sole,  without  the  husband's  joinder  at 
all.  See  36  Ark.  355;  §  170  /;. .-  Stim- 
son,  Am.  Stat.  Law,  §§  6500-6502. 

In  general,  where  the  certificate  of  a 
married  woman's  acknowledgment  of 
a  deed  states  all  that  the  local  stat- 
ute requires,  although  it  be  assumed  to 
be  only  prima  facie  evidence  of  the 
facts  stated  in  it,  its  statements  can- 
not be  successfully  impeached  by  evi- 
dence not  clear,  complete,  and  satisfac- 
tory. Young  v.  Dnvall,  109  U.  S.  573; 
Smith  v.  McGuire,  67  Ala.  34;  Herrick 
v.  Musgrove,  67  Iowa,  63. 

2  Eaton  v.  Nason,47  Me.  132  ;  Swan 
v.  Wiswall,  15  Pick.  126;  Whiting  v. 
Stevens,  4  Conn.  44 ;  Demarest  v.  Wyn- 
koop,  3  Johns.  Ch.  144;  2  Kent,  Com. 
167;  Siter  v.  McClanachan,  2  Gratt. 
280;  Schouler,  Hus.  &  Wife,  §  176; 
American,  &c.  Ins.  Co.  v.  Owen,  15 
Gray,  491 J  Edwards  v.  Schoeueman, 
104  111.278.      But  cf.  §152. 

8  McCullough  v.  Wilson,  21  Penn. 
St.  436. 

*  Black  v.  Galway,  24  Penn.  St.  18. 

6  2  Kent,  Com.  167;  Yartie  v.  Un- 
derwood, 18  Barb.  561;  Barnes  v.  Ehr- 
man,  74  111.  402. 


CHAP.  VI.]  WIFE'S    REAL   ESTATE,    ETC.  §  05 

and  prescribe  the  terms.1  But  independently  of  an  express 
statute  permission,  and  as  our  statutes  generally  run,  the  wife's 
mortgage  without  her  husband's  joinder  or  assent  is  void.2  And 
so  is  her  assignment  of  a  mortgage.3  And  where  her  joinder  is 
literally  only  by  way  of  releasing  dower  this  defect  vitiates  the 
deed  as  against  her.4 

§  95.  Covenants  in  Wife's  Statute  Conveyance  or  Mortgage, 
&c. — The  rights  of  the  wife  are  nevertheless  in  all  such  cases 
of  conveyance,  absolutely  or  for  security,  treated  with  great 
consideration  in  our  courts.5  Wherever  the  wife  joins  her 
husband  in  a  mortgage  of  her  own  property  to  secure  his  debts 
or  the  payment  of  money  loaned  to  him,  she  is  merely  the 
surety  of  her  husband,  and  is  entitled  to  all  the  rights  and 
privileges  of  a  surety.  This  rule  is  well  settled.6  The  prop- 
erty actually  mortgaged  by  her,  and  not  her  property  in  gen- 
eral, is  thus  subjected  to  the  payment  of  her  husband's  note ; 
and  she  cannot  be  held  personally  liable  for  any  deficiency 
under  the  foreclosure  sale.7  Such  restrictions  are  intended  for 
her  benefit,  not  for  those  of  the  mortgagee.8 

So,  too,  a  wife  is  not  bound  by  her  warranty  in  a  deed  whether 
of  absolute  or  mortgage  conveyance  which  she  executes.     Nor  by 

1  Demarest  v.  Wynkoop,  3  Johns,  purchaser  of  her  land  pays  to  her  hus- 
Ch.  129;  2  Kent,  Com.  167.  So,  too,  in  band  less  than  she  agreed  to  receive, 
England.  Pybus  v.  Smith,  1  Ves  Jr.  she  may  repudiate  the  sale,  save  so 
189.  far  as    her   own  subsequent  acts    and 

2  Weed  Sewing  Machine  Co.  v.  conduct  may  impede  her  right.  Cole 
Emerson,    115    Mass.  554;    Bressler  v.  v.  Bammel,  62  Tex.  108. 

Kent,  61    111.  426;  Yager  v.  Merkle,  26  4  Franklin  Savings  Bank  v.  Miller, 

Minn.  429;    Herdmaun  v.  Pace,  85  111.  17  R.   I.  272.     Equity  will  not  reform 

345.      Estoppel  cannot  be   invoked  to  defective  deeds   of  tliis  kind.     53  Ark. 

hind  the  wife  to   her  sole  deed  where  53. 

she  supposed  erroneously  that  her  hus-  5  See  Bayler  v.  Commonwealth,  40 

band  was  dead.     117  Ind.  9.  Penn.  St.  37,  per  Strong,  J. ;  lb.  p.  44. 

3  Moore  v.  Cornell,  68  Penn.  St.  320.  6  Neimcewicz  v.  Gahn,  3  Paige,  614 ; 
Equity    and     legislative     policy    in  Hawley  v.  Bradford,  9  Parge,  200  ;  Var- 

modern  times,  as  we  shall  observe  here-  tie  v.  Underwood,  18  Barb    561.     See 

after,   tend,  moreover,   to   protect    the  Schouler,   Hus.  &   Wife,    §   177,   more 

wife  from  the  consequences  of  her  con-  fully. 

veyance   or   mortgage   where   she   has  7  Strother  v.  Law,  54  111.  413  ;  Logan 

heen  imposed  upon,  and  if  possible  to  v.   Thrift,   20   Ohio   St.  62;    Schouler, 

protect  the  fund  produced  by  her  real  Hus.  &  Wife,  §  177,  and  cases  cited 

estate  for  her  wherever  its  identity  is  8  Bennett    v.   Mattingly,     110    Ind. 

preserved.     See  cs.  10, 11.     Where  the  197. 

ii  161 


§  95  THE   DOMESTIC    RELATIONS.  [PART    II. 

any  covenants  contained  therein.  This  is  the  general  common- 
law  rule  in  England  and  America.1  For  this  accords  with  the 
principle  that  married  women  are  incapable  of  binding  them- 
selves by  contract :  and  the  effect  of  her  conveyance  under  the 
statute  is  simply  that  she  passes  whatever  title  she  had  in  the 
lands  conveyed.  Yet  the  husband  may  be  bound  on  his  part, 
where  he  joins  her,  notwithstanding.2  In  England,  where  the 
wife  formerly  passed  her  real  estate  by  suffering  a  fine,  it  was 
held  long  ago  that  if  the  grantee  were  evicted  by  a  paramount 
title  the  wife  could  be  sued  on  her  covenant  of  warranty  after 
her  husband's  death.3  So,  too,  it  was  formerly  said  that  the 
wife  should  be  held  bound  on  the  covenants  contained  in  a 
lease  of  her  lands  executed  during  coverture,  with  her  husband, 
and  affirmed  by  herself  after  his  death,  by  such  acts  as  the  ac- 
ceptance of  rent;4  and  this  doctrine  is  certainly  not  unreason- 
able so  far  as  a  subsequent  breach  of  covenant  is  concerned. 
But  further  than  this,  courts  would  not  probably  go  at  this  day.5 
And  in  this  country  the  wife's  covenants  in  a  conveyance  exe- 
cuted jointly  with  her  husband  are  considered  binding  upon  her 
only  by  way  of  estoppel ;  and  not  so  as  to  subject  her  to  suit 
for  damages.6  And  as  she  is  not  answerable  for  a  breach  of 
covenant,  neither  are  her  heirs  or  devisees.7  Indeed,  in  New 
York,  the  wife's  privilege  in  this  respect  is  carried  much  further, 
for  she  is  permitted  to  execute  a  conveyance  of  land  with  her 
husband,  containing  a  covenant  of  warranty  on  her  part,  and 
then  to  defeat  the  title  by  acquiring  an  adverse  interest  after- 

1  2  Kent,  Com.  167,  168;  Fowler  v.         4  2  Saund.  80,  note  9. 
Shearer,  7  Mass.  21,  per  Parsons,  C.  J. ;         5  Her  covenant  for  quiet  enjoyment 

Falmouth  Bridge  <"".  v.  Tibbetts,  16  P.  in  the  lease  of  her  lands  will  not  bind 

Monr.  637;  Den   v.    Demarest,  l   Zab.  her.     Foster  v.  Wilcox,  10  R.  1. 443. 
(N.  J.)  525 ;  Rawle, Cov. 573,  574;Bots-         8  Nash   v.   Spofford,    10  Met.   192; 

ford  v.  Wilson,  75  111.  133 ;  53  Ark.  545.  Jackson    v.    Vanderheyden,    17  Johns. 

-  Bnell  v.   Shuman,  28  End.  464;  61  167;  Dean  v.  Shelly,  57  Penn.  St.  426; 

Iu'l.  362;  Bellows v,  Litchfield, 83  Lowa,  Hyde  v.  Warren,  46  Miss.  13. 
36.  Her  subsequent  promise  as   widow 

l  Wotton  '••   Hele,  2  Saund    177;  1  to  be  answerable  for  a  breach  of  cove- 
Mod   29fl      Chancellor  Kenl  justly  oh-  nant  committed   during   her  coverture 
i  thai  this  \\  .i~  ;i  very  strong  case  is   without    consideration.     State    Nat. 
to  show  thai  she  tnighl  deal  with  her  Bank  v.  Robidoux,  57  Mo.  446. 
land    by   fine   as  a  feme  sole.     ^  Kent,         "  Foster  v.  Wilcox,  10  R.  I.  443. 
Com.  I'm. 

L62 


CHAP.  VI.]  WIFE'S    REAL    ESTATE,    ETC.  §  97 

wards.1  A  wife  may  relieve  against  the  joint  deed  of  herself 
and  husband  by  showing,  notwithstanding  its  recitals,  that  no 
consideration  was  paid.2 

§  96.  Conveyance,  &c,  of  Infant  Wife's  Lands.  —  A  deed  of 
the  wife's  real  estate,  executed  by  husband  and  wife  while  the 
latter  is  under  age,  may  be  avoided  by  the  wife  within  reason- 
able time  after  discoverture,  though  more  than  twenty  years 
have  elapsed ; 3  for  this  is  analogous  to  the  conveyance  of  an 
infant  feme,  sole  in  respect  of  validity.4  But  not,  as  it  is  held, 
where  the  wife,  being  apparently  of  full  age,  made  oath  that  she 
was  of  age.5  As  to  the  lapse  of  time  permitted  a  wife  for  disaf- 
firming the  deed  executed  by  her  during  infancy,  the  rule 
appears  to  be  that  a  reasonable  time  should  be  allowed  her 
after  coverture  has  terminated  by  the  death  of  her  husband  or 
their  complete  divorce,  even  though  twenty  or  thirty  years  may 
meantime  have  elapsed  since  her  attainment  to  majority.6  But 
permissive  acts  on  her  part  after  she  is  both  adult  and  dis- 
covert may  estop  her  within  a  reasonable  time  and  amount  to 
ratification.7 

§  97.  Distinction  bet-ween  Wife's  General  and  Separate  Real 
Estate. — We  may  observe,  on  the  whole,  that,  while  modern 
statutes  greatly  vary  in  this  country,  as  to  the  requisites  at- 
tending a  married  woman's  conveyance  of  her  lands,  and,  as  we 
shall  notice  hereafter,  concerning  her  legal  dominion  over  her 
lands,  the  disposition  is  to  construe  those  requisites  more  strictly 
in  the  case  of  her  general  or  common-law  real  estate  than  where 


1  Jackson  i\  Vanderheyden,  17  4  Dixon  v.  Merrett,  21  Minn.  196. 
Johns.  167;  Carpenter  v.  Schermer-  5  Schmitheimer  v.  Eiseman,  7  Bush, 
horn,  2  Barb.  Ch.  314.  And  see  Shu-  298.  Sed.  qu-,  where  the  land  belongs 
maker  v.  Johnson,  35  Ind.  33 ;  123  Ind.  to  the  wife's  general,  and  not  her sep- 
62;  Goodenough  v.  Fellows,  53  Vt.  102  ;  arate,  estate.  Sims  v.  Everhardt,  102 
Preston  r.  Evans,  56  Md.  476.  Contra,  U.  S.  300,  commenting  upon  Scranton 
Colcord  v.  Swan,  7  Mass.  291;  Hill  v.  v.  Stewart,  52  Ind.  68.  It  is  inequitable 
West,  8  Ohio,  225  ;  Massie  v.  Sebas-  to  disaffirm  and  retain  the  considera- 
tian,  4  Bibb,  436  ;  Nash  v.  Spofford,  10  tion.     88  Ky.  515;  92  Ky.  500. 

Met.  192.     And  see  4  Com.  Dig.  79  b.  6  Sims  v.  Everhardt,  102  U.  S.  300. 

2  Vincent  v.  Walker,  93  Ala.  165.  And  see  Harrer  v.  Walluer,  80  111.  197 , 

3  Yourse   v.   Norcross,   12  Mo.  549.  Fisher  v.  Payne,  90  Ind.  183. 

And  see  Porch  v.  Fries,  3  C.  E.  Green,  "  Logan  v.  Gardner,  136  Penn.  St, 

204;   Dodd  v.  Benthal,  4   Heisk.   601;  588;  §447,  post;  119  Ind.  188. 
Williams  v.  Baker,  71  Penn.  St.  476. 

163 


§  98  THE    DOMESTIC    RELATIONS.  [PART   II. 

she  owns  lands  as  her  statutory  separate  estate.  Hence  a  dis- 
tinction, which  modern  legislation  tends  all  the  while  to  obliter- 
ate, between  the  conveyance  of  the  wife's  general  land  and  of 
her  separate  land.  As  to  the  latter,  estoppel  en  pais  is  some- 
times applicable  ;  but  not  so,  usually,  with  the  former.  In  the  one 
case  the  wife's  own  conduct  during  coverture,  by  way  of  affirm- 
ance or  receiving  benefits,  and  more  especially  her  fraudulent 
conduct,  may  bind  her  in  spite  of  some  defective  method  of  con- 
veyance ;  in  the  other  and  present  case  it  does  not.1  As  to  the 
wife's  separate  real  estate,  the  husband  is  frequently  her  manag- 
ing agent,  to  collect  rents  and  deal  with  the  tenant  on  her 
behalf ; 2  and  some  codes  make  him  her  trustee,  with  power  to 
manage  and  control  such  real  estate.3 

§  98.  Wife's  Life  Estate;  Joint  Tenancy,  &c. — If  the  wife  at 
the  time  of  her  marriage  has  a  life  estate  in  lands,  her  husband 
becomes  seised  of  such  estate  in  the  right  of  his  wife,  and  he  is 
entitled  to  the  profits  during  coverture.  So  if  it  were  granted 
to  a  trustee  for  her  own  use.  And  the  same  rule  applies 
whether  the  estate  be  for  the  life  of  the  wife  or  of  some  other 
person.  If  the  estate  be  for  the  wife's  own  life  it  terminates  at 
her  death,  and  the  husband  has  no  further  interest  in  it.  But 
if  it  be  an  estate  for  the  life  of  another  person  who  survives 
her,  the  husband  takes  the  profits  during  the  remainder  of  such 
person's  life  as  a  special  occupant  of  the  land.  The  husband's 
representatives  in  either  case  take  crops  growing  on  the  land  at 
the  time  of  his  death.4  But  the  husband  might,  at  common 
law,  take  a  release  or  confirmation  to  enlarge  his  life  estate.5 
The  conveyance  of  the  wife's  life  estate  follows  the  usual  statute 
rule  as  to  her  conveyauces.6 

1  See  cs.  10,  11, post;  also  Wood  v.  6  Co.  Litt.  299. 

Terry,  30   Ark.  385;  Oglesby  Coal  Co.  6  Henning  v.  Harrison,  13  Bush,  723. 

o.    Pasco,    79    111.    104;    Sims  v.   Ever-  As  concerns  the  wife's  life  estate  in  her 

hardt,  102  I'.   S.  300;  Bedford  v.  Bur-  real  or  personal  property,  the  English 

ton,  106  I'.  S.  338;  108  Ind.  301.  chancery  courts  have  followed  out  ex- 

-  See    Kingsmarj    v.    Kingsman,   6  ceptions  to  the  doctrines  of  equitable 

Q     B.    D.    122;    Cahill  v.   Lee,   55  Md.  assignment  already  noticed,  with  their 

819;  Buck  v.  Lee,  86  Ark.  525.  limitations.     See    Pnrdew   v.  Jackson, 

■;  81  Ala.  411.  1    Rubs.   1;    Schouler,   IIus.   &  Wife, 

'  2  Kent,  Com.  134;  I   Bright,  Ens,  §  157;  supra,  §  84. 
&.  Wile,  H2,  U8. 

164 


CHAP.  VII.]  WIFE'S    SEPARATE    PROPERTY.  §  100 

A  husband  acquires,  by  his  marriage,  tbe  riglit  to  use  and 
occupy,  during  coverture,  lands  held  by  his  wife  in  joint 
teuancy.1 

§  99.  Husband's  Freehold  Interest  in  Wife's  Land  not  Devisa- 
ble by  Wife.  —  The  freehold  which  the  husband  acquires  in 
his  own  right  in  the  real  estate  of  his  wife  during  her  coverture 
is  a  subject  upon  which  the  wife's  devise  cannot  operate,  more 
than  her  conveyance,  independently  of  his  permission.2 


CHAPTER   VII. 

COVERTURE    MODIFIED    BY   EQUITY   AND    RECENT   STATUTES. 

§  100.  Prevalent  Tendency  to  Equalize  the  Sexes  ;  Marriage 
Relation  Affected.  —  Aside  from  woman's  political  relations,  and 
those  social  and  business  opportunities,  not  peculiar  to  the  mar- 
riage state,  which  are  now  extended  considerably  to  her  sex,  we 
may  observe,  both  in  England  and  the  United  States,  a  liberal 
disposition  of  court  and  legislature  within  the  present  century 
to  bring  her  nearer  to  the  plane  of  manhood,  and  advance  her 
condition  from  obedient  wife  to  something  like  co-equal  mar- 
riage partner.  Man  makes  the  concessions,  step  by  step,  out 
of  deference  to  woman's  wishes,  and  in  token  of  her  influence ; 
and  thus  does  the  coverture  theory  of  marriage  gradually  fade 
out  of  our  jurisprudence.  The  liberal  tendencies  of  modern 
civilization  favor  this  change:  moreover,  that  love  of  justice  and 
individual  liberty  which  always  characterized  our  Saxon  race, 
and  the  steadfast  disposition  of  English  and  American  courts 
both  to  administer  the  written  law  impartially,  and  to  extend 
and  adapt  its  provisions  to  the  ever-changing  wants  of  society. 

Our  preceding  pages  have  shown,  in  respect  to  the  person  of 
the  spouses,  their  matrimonial  domicile,  the  conjugal  restraint 

1  Bishop  v.  Blair,  36  Ala.  80 ;  Roy-  See  post,  as  to  the  wills  of  married 
ston  v.  Royston,  21  Ga.  161.  women,  §  203,  n. 

2  Clarke's  Appeal,  79  Penn.  St.  376. 

165 


§  100  THE   DOMESTIC    RELATIONS.  [PART    II. 

and  correction  of  the  wife,  the  custody  of  the  offspring  —  again, 
as  to  the  wife's  power  to  bind  as  agent,  her  necessaries,  or,  in 
respect  of  property,  her  equity  to  a  settlement,  and  modern 
modes  of  conveying  her  lands  —  a  modern  disposition  to  so  con- 
strue and  apply  or  modify  even  the  old  law  that  she  may  enjoy 
a  very  fair  share  of  freedom  and  consideration  in  the  household, 
and  maintain  her  dignity  under  all  circumstances.  Husband 
and  wife  cease  to  be  one ;  they  are  two  distinct  persons  with 
distinct  and  independent  rights.  At  the  same  time  the  idea  of 
unity  in  the  domestic  government  —  of  domestic  government  at 
all  —  becomes  weakened;  the  cruel  or  dissolute  husband  having 
less  power  for  ill,  and  the  just  and  faithful  one,  too,  finding  his 
legal  authority  over  a  high-tempered  companion  exceedingly 
precarious.  Modern  legislation  accomplishes  even  more  than 
judicial  construction  towards  this  result,  especially  in  the 
United  States ;  and  indeed,  as  to  the  married  women's  acts 
and  divorce  acts  of  this  day,  it  may  be  truly  said  that  England 
borrows  more  from  this  country  than  does  this  country  irom 
England. 

Of  the  American  married  women's  acts,  which  relate  chiefly 
to  their  property  and  contracts,  we  have  already  spoken.1 
These  acts  are  modern ;  still,  they  are  constantly  undergoing 
local  change,  and  immense  labor  has  been  necessarily  bestowed 
by  local  courts  during  the  last  forty  years  in  expounding 
them.  We  shall  seek  to  place  before  the  reader  such  legal  re- 
sults as  may  be  thought  to  have  passed  into  principles ;  as  for 
the  rest,  it  is  a  chaos  of  uninteresting  rubbish,  from  which  the 
practitioner  selects  only  that  which  obtains  in  his  own  juris- 
diction. All  this  legislation  regarding  the  rights  of  married 
women  should  be  harmonized  and  simplified  as  soon  as  practi- 
cable. This  is  not  easy  with  so  many  independent  States,  each 
carving  out  its  own  career.  And  the  difficulty  is  aggravated 
from  the  fact  that  the  married  women's  acts  Were  experimental 
advances  and  had  no  common  origin  ;  there  was  no  model  found 
to  work  from,  English  or  American,  and  the  results  were 
necessarily  discordant  and  variable. 

1  Sec  1'art  I.,  supra. 

166 


CHAP.  VII.]  WIFE'S   SEPARATE   PROPERTY.  §  102 

§  101.  Modern  Changes  in  Married  Women's  Rights,  —  How  to 
be  Studied. — The  changes  to  which  we  shall  proceed  to  direct 
the  reader's  inquiry,  under  our  main  heading,  must  he  studied 
as  by  way  of  supplement  or  supersedure  to  the  coverture  doc- 
trines set  forth  in  the  chapters  preceding.  As  before,  these 
changes  affect  the  wife's  debts  and  contracts,  her  injuries  and 
frauds,  and  her  personal  and  real  property.  They  are  partly  of 
equitable  and  partly  of  statutory  origin.  But,  most  of  all,  they 
impair  the  old  doctrine  which  treated  the  husband  as  absolute 
or  temporary  owner,  controller,  and  manager  of  his  wife's  prop- 
erty and  acquisitions,  by  virtue  of  the  marriage,  and  create  in 
favor  of  the  wife  what  is  commonly  known  in  these  days  as 
her  separate  property.1 

Here,  therefore,  as  on  most  points  relating  to  the  law  of  hus- 
band and  wife,  one  must  first  examine  the  old  common-law  or 
coverture  doctrine,  and  then  perceive  how  far  modern  equity 
rules  or  the  local  legislation  may  have  varied  that  law.  Such 
changes  date  back  not  much  farther  than  a  century,  the  most 
radical  of  them  being  less  than  half  a  century  old  ;  the  equitable 
changes  being  for  the  most  part  of  earlier,  and  the  statutory 
changes  of  later,  date,  and  the  law  of  England  and  this  country 
harmonizing  on  the  whole  subject,  at  the  independence  of  the 
American  colonies,  as  at  their  first  settlement.  The  instances 
will  be  found  rare  at  the  present  day,  where  an  important 
common-law  principle  respecting  the  wife's  contracts,  torts, 
property,  and  the  formalities  of  suit  is  not  found  at  this  day 
essentially  changed. 

§  102.  Modern  Equity  and  Statute  Doctrine  ;  England  and  the 
United  States.  —  As  preliminary  to  an  exposition  of  the  wife's 
separate  property,  we  may  observe  that  there  is  an  equitable 
doctrine  on  this  subject  and  a  statutory  doctrine.  The  equitable 
doctrine  is  the  prior  in  point  of  time,  and  is  chiefly  the  work  of 
English  chancery  courts ;  while  the  statutory  doctrine,  which 
is  of  later  date,  is  founded  in  the  married  women's  acts,  now 
familiar  in  our  several   States,  and  their  judicial  construction. 

1  More  gradually,  perhaps,  and  yet  change  in  this  later  generation  ;  and 
purely  in  tendency,  general  rights  as  to  this  largely  by  indirection.  See  c.  2, 
the  person  of  the  spouse  suffer  great    supra. 

167 


§  103  THE   DOMESTIC    KELATIONS.  [PART    II. 

The  equitable  doctrine  is  more  purely  English ;  the  statutory 
doctrine  more  purely  American,  —  though  each  country  has 
come,  ere  this  day,  to  borrow  in  such  respects  from  the  other. 
American  cases  frequently  distinguish  still  between  an  equi- 
table separate  estate  and  a  statutory  separate  estate  in  favor 
of  a  wife ;  but  so  sweeping  is  the  latest  legislation  in  most 
States  that  such  a  distinction  becomes  of  comparatively  little 
consequence. 


CHAPTER   VIII. 

THE   WIFE'S    SEPARATE   PROPERTY  ;   ENGLISH   DOCTRINE. 

§  103.  Origin  and  Nature  of  Separate  Estate  in  Chancery.  — 
In  the  present  chapter,  and  with  reference  to  Great  Britain,  our 
concern  is  almost  exclusively  with  the  remarkable  development 
of  an  equitable  doctrine  of  separate  property.  Emerging  from 
coverture  and  the  common  law,  we  come  out  into  the  light  uf 
equity ;  and  here  all  things  assume  a  new  aspect.  The  married 
woman  is  no  longer  buried  under  legal  fictions.  She  ceases  to 
hold  the  strange  position  of  a  being  without  an  existence,  one 
whose  identity  is  suspended  or  sunk  in  the  status  of  her  hus- 
band ;  she  becomes  a  distinct  person,  with  her  own  property 
rights  and  liabilities.  Her  condition  is  not  as  independent  as 
before  marriage ;  this  the  very  idea  of  the  marriage  relation  and 
the  disabilities  of  her  sex  forbid.  But  she  is  dependent  only  so 
far  as  the  laws  of  nature  and  the  forms  of  society  make  her  so ; 
while  her  comparative  feebleness  renders  her  the  special  object 
of  chancery  protection  whenever  the  interests  of  herself  and 
her  husband  clash  together.  She  may  contract  on  her  own  be- 
half; she  may  sue  and  be  sued  in  her  own  name  ;  she  may  hold 
lands,  goods,  and  chattels  in  her  own  right,  which  property  is 
known  as  th<'.  wife's  separate  estate,  or  estate  limited  to  the 
wife's  separate  use  ;  and  procedure  is  chiefly  in  rem. 

The  doctrine  of  the  wife's  separate  estate  originated  in  the 
spreading  conviction  that  it  was  expedient  for  the  interests  of 
society  that  means  should  exist  by  which,  upon  marriage,  either 
168 


CHAP.  VIII.]         WIFE'S    SEPARATE   PROPERTY.  §  104 

the  parties  themselves  by  contract,  or  those  who  intended  to 
give  bounty  to  a  family,  might  secure  property  without  that 
property  being  subject  to  the  control  of  the  husband.1  In  Eng- 
land that  doctrine  was  established  more  than  a  century  ago,  and 
to  the  equity  courts  belongs  the  credit  of  the  invention.2  The 
equity  to  a  settlement,  of  which  we  have  already  spoken,  is 
part  of  that  doctrine.3  While  at  common  law  the  separate  ex- 
istence of  the  wife  was  neither  known  nor  contemplated,  equity 
considered  that  a  married  woman  was  capable  of  possessing 
property  to  her  own  use,  independently  of  her  husband ;  and 
the  courts  gradually  widened  and  developed  this  principle  until 
it  became  fully  settled  that,  however  the  wife's  property  might 
be  acquired,  whether  through  contract  with  her  husband  before 
marriage,  or  by  gift  from  him  or  from  any  stranger  indepen- 
dently of  such  contract,  equity  would  protect  it,  if  duly  set 
apart  as  her  separate  estate,  no  matter  though  the  husband 
himself  must  be  held  as  the  trustee  to  support  it.4 

This  great  change  in  the  jurisprudence  of  England  was 
effected  by  a  few  great  men  without  any  help  from  the  legis- 
lature. The  court  of  chancery  in  this  as  in  other  respects 
recognized  its  true  function  of  making  the  law  work  justice 
by  accommodating  its  operation  to  the  altered  circumstances 
of  society.5  Obscure  and  doubtful  indications  of  the  wife's 
separate  estate  are  found  as  early  as  the  reign  of  Queen  Eliza- 
beth. It  seems  to  have  been  plainly  recognized  by  Lord  Not- 
tingham, Lord  Somers,  and  Lord  Cowper.  In  Lord  Hardwicke's 
time  it  was  perfectly  established ;  and  Lord  Thurlow,  in  sanc- 
tioning the  clause  against  anticipation,  prevented  the  wife  her- 
self from  destroying  the  fabric  which  had  been  reared  for  her 
benefit.6 

§  104.  Whether  Appointment  of  a  Trustee  is  Necessary.  — 
Where  property  comes  to  the  wife's  separate  use,  it  is  treated 

1  Rennie  v.  Ritchie,  12  CI.  &  Fin.  *  Tullett  v.  Armstrong,  1  Beav.  21; 
234 ;  Peaehey,  Mar.  Settl.  259.                    Peachey,  Mar.    Settl.   260,    and    cases 

2  Harvey   v.    Harvey,    1    P.    Wms.     cited. 

124  ;  Woodmeston   v.   Walker,  2  R.  &  6  Macq.  Hus.  &  Wife,  284. 

M.  205  ;  Tullett  v.  Armstrong,  1   Beav.  6  See  Pybus  v.  Smith,  4  Bro.  C.  C. 

21.  485;    Tullett  v.   Armstrong,   per  Lord 

3  Supra,  §  85;  Schouler,  Hus.  &  Langdale,  1  Beav.  22;  Macq.  Hus.  & 
Wife,  §§  160-162.  Wife,  285. 

1G9 


§  105  THE   DOMESTIC    RELATIONS.  [PART   II. 

in  equity  as  trust  estate,  of  which  she  is  cestui  que  trust.  Yet 
it  is  not  actually  necessary  that  the  instrument  constituting  the 
separate  use  should  itself  make  an  appointment  of  trustees. 
Formerly  the  rule  was  otherwise  ;  but  at  the  present  day  equity 
makes  the  husband  a  trustee  where  no  other  holds  possession, 
and  thus  supports  the  trust.1  And  where  a  trustee,  regularly 
appointed,  in  breach  of  his  duty,  and  without  the  privity  of  the 
wife,  pays  the  trust  money  over  to  the  husband,  equity  follows 
the  money  into  the  husband's  hands,  and  makes  him  likewise 
accountable  as  his  wife's  trustee.2  It  impresses  a  trust  upon 
the  wife's  separate  estate  wherever  such  estate  may  be  found. 
But  while  the  appointment  of  third  persons  as  trustees  is  not 
essential  to  give  the  wife  a  separate  estate,  or  a  separate  interest 
in  any  particular  estate,  it  is  certainly  desirable  on  many  ac- 
counts ;  and  there  is  in  it  this  marked  advantage,  that  the  prop- 
erty is  made  thereby  more  secure,  because  such  influence  of  the 
husband  over  the  wife  is  prevented  as  might  induce  her  to 
abandon  the  property  to  him.3 

§  105.  Coverture  applies  Prima  Facie;  How  Separate  Estate 
is  created.  —  Prima  facie  the  legal  ownership  of  property  which 
is  in  the  wife  at  the  time  of  marriage,  or  comes  to  her  during 
coverture,  vests  in  the  husband  under  his  marital  right.  It  is 
therefore  necessary  that  the  intention  to  establish  a  separate 
use  be  clearly  manifested,  else  courts  of  equity  will  not  inter- 
pose against  him.  No  technical  formalities  or  expressions  are 
required  ;  but  the  purpose  must  appear  beyond  the  reach  of 
reasonable  controversy,  in  order  to  entitle  the  wife  to  claim  the 
property  as  her  own  in  derogation  of  the  common  law.4 

1   Bennett  v.  Davis,  2  P.  Wins.  .316;  woman,  the    compromise   of   a   suit  to 

Davison     <•.    Atkinson,    ;">    T.    R.   4.35;  make   a   trustee    liable   for   breach    of 

Messenger    v.    Clarke,    5   Exch.    •'!!»•'!;  trust    in   the   fund.     Wall   v.   Rogers, 

Peachey,     Mar.    Settl.     260;     Fox    v.  L.  R.  9  Eq.  58. 
Hawks,"  L.  K.   Li  Ch.   I).  822.  *  Maeq.  1 1  us.  &  Wife,  307  ;  Tyler  v. 

-  Rich  v.  Cockell,  9  Ves.  875.     See  Lake,  2  Russ.  &  M.  183;  Kensingtons, 

also  [zod  v.  Lamb,  I  Cr.  &  J.  85,  Dollond,  2  M.  &  K.  184  ;  Moore  <•.  Mop- 

:;  Newlands  v.  Paynter,  10  Sim.  377;  ris,  4  Drew.  37;  Peachey,   Mar.  Settl. 

*  con  appeal,  4  M.  i<   Cr.408;  Ham-  27!).     As  to  the  words  which  in  them- 

phery    v.    Richards,   25    L.  .J.    Eq.  444  ;  selves  indicate  the  intention  of  creating 

-    ■     -'  Jur.    133;  Peachey,  Mar.  Settl,  a  separate  use,  there  have  been  numer- 

260;   Macq    Hue   &  Wife,  291.     Equity  ous  decisions.     Among  them   t lie  fol- 

caii   sanction,  on  behalf  of  a  married  lowing  expressions  arc  held  sufficient: 
170 


CHAP.  VIII.]         WIFE'S    SEPARATE    PROPERTY. 


§105 


As  a  wife  is  only  made  a  party  to  a  suit  instituted  by  her 


"  For  her  full  and  sole  use  ami  bene- 
fit." Arthur  v.  Arthur,  11  Ir.  Eq.  511  ; 
"  For  her  own  sole  use  aud  benefit." 
Ex  parte  Killick,  3  Mon.  D.  &  De  G. 
480.  "  For  her  sole  use."  Lindsell  v. 
Thacker,  12  Sim.  178.  "For  her  sole 
and  separate  use  and  benefit."  Archer 
v.  Rorke,  7  Ir.  Eq.  478.  "For  her  sole 
aud  separate  use."  Parker  v.  Brooke, 
9  Ves.  583;  Adamson  v.  Armitage,  19 
lb.  415.  "  For  her  sole  use  aud  bene- 
fit."      v. Lyne,  Younge,  562.     "For 

her  own  sole  use,  benefit,  aud  disposi- 
tion." Ex  parte  Ray,  1  Madd.  199. 
"  For  her  sole  and  absolute  use."  For 
her  "sole  use  and  disposal."  17  Ch.  D. 
794 ;  Davis  v.  Prout,  7  Beav.  288. 
"  For  her  owu  use,  and  at  her  own  dis- 
posal." Prichard  v.  Ames,  Turu.  & 
Russ.  222.  "To  be  at  her  disposal, 
and  to  do  therewith  as  she  shall  think 
fit."  Kirk  v.  Paulin,  9  Vin.  Abr. 
96,  pi.  43.  "  Solely  and  entirely  for 
her  own  use  and  benefit."  Inglefield 
v.  Coghlan,  2  Coll.  247.  "  For  her 
own  use,  independent  of  any  husband." 
Wagstaff  v.  Smith,  9  Ves.  "520.  "  Not 
subjected  to  the  control  of  her  hus- 
band." Bain  v.  Lescher,  11  Sim.  397. 
"For  her  own  use  and  benefit,  indepen- 
dent of  any  other  person."  Margetts  v. 
Barringer,  7  Sim.  482.  "For  her  live- 
lihood." Darley  v.  Darley,  3  Atk.  399. 
"  As  her  separate  estate."  Fox  v. 
Hawks,  L.  R.  13  Ch.  D.  822.  "  To  re- 
ceive the  rents  while  she  lives,  whether 
married  or  single."  And  see  Peachey, 
Mar.  Settl.  279,  280 ;  Macq.  Hus.  & 
Wife,  308,  309 ;  Goulder  v.  Camm,  De 
G.  F.  &  J.  146. 

So,  too,  the  intention  of  excluding 
the  husband's  marital  rights  may  be 
inferred  from  the  nature  of  the  pro- 
visions attached  to  the  gift ;  as  where, 
for  example,  the  direction  is  that  the 
property  shall  be  at  the  wife's  disposal, 
or  there  is  some  other  clear  indication 
that  such  was  the  donor's  intention, 
Prichard  v.  Ames,  Turn.  &  Russ.  223 ; 
Peachey,  Mar.  Settl  279.  Lord  Thur- 
low  once  decided  that  a  direction  "  that 


the  interest  and  profits  be  paid  to  her, 
and  the  principal  to  her  or  to  her  order 
by  note,  or  writing  under  her  hand," 
created  a  trust  for  the  wife's  separate 
use.  Hulme  v.  Teuaut,  1  Bro.  C.  C.  16. 
So  in  the  judgment  of  Sir  William 
Fortescue,  Master  of  the  Rolls,  did  the 
words,  "  that  she  should  enjoy  and 
receive  the  issues  and  profits  of  the 
estate."  Tyrrell  v.  Hope,  2  Atk.  561. 
"  For  to  what  end  should  she  receive 
it,"  says  this  judge,  "  if  it  is  the  prop- 
erty of  the  husband  the  uext  moment  ?  " 
And  Lord  Loughborough  gave  a  like 
effect  to  a  direction  that  certain  prop- 
erty should  be  delivered  up  to  a  married 
woman  "  whenever  she  should  demand 
or  require  the  same."  Dixon  v.  Ol- 
mius,  2  Cox,  414.  A  similar  construc- 
tion has  also  been  applied  to  the  words, 
"to  be  laid  out  iu  what  she  (the  wife) 
shall  think  fit."  Atcherley  v.  Vernon, 
10  Mod.  518.  See  Blacklow  v.  Laws,  2 
Hare,  52.  And  a  legacy  to  a  married 
woman,  "  her  receipt  to  be  a  sufficient 
discharge  to  the  executors,"  has  been 
held  sufficient.  Warwick  v.  Hawkins, 
13  E.  L.  &  Eq.  174.  A  legacy  added 
by  a  codicil  to  the  legacy  given  by  a 
will  is  subject  to  the  incidents  of  the 
original  legacy ;  and  the  separate  use 
may  be  extended  by  construction  from 
the  will  to  the  codicil.  Day  v.  Croft,  4 
Beav.  561. 

Yet,  on  the  other  hand,  the  form  of 
expression  will  go  far  towards  deter- 
mining whether  property  is  or  is  not 
limited  to  the  wife's  separate  use. 
Vice-Chancellor  Wigram,  in  a  case  be- 
fore him  not  many  years  ago,  was 
forced  to  admit  that  while  ruling  out 
certain  property  from  the  wife's  sep- 
arate use,  on  account  of  the  testator's 
insufficient  language,  he  had  a  strong 
opinion  that  he  decided  against  the 
real  intention  of  the  testator.  Black- 
low  v.  Laws,  2  Hare,  49.  It  is  to  be 
observed,  then,  that  courts  of  equity 
will  not  deprive  the  husband  of  his 
rights  at  law  unless  the  words  of  them- 
selves clearly  import  the  intention  ta 

171 


§105 


THE   DOMESTIC    RELATIONS. 


[PART   II. 


husband  on  the  alleged  ground  of  her  having  separate  estate, 


exclude  him.  Peachey,  Mar.  Settl. 
281  ;  Tyler  v.  Lake,  2  Russ.  &  M.  188; 
Massey  v.  Parker,  2  M.  &  K.  1S1  ; 
Macq.  Hus.  &  Wife.  309.  A  mere  trust, 
therefore,  to  pay  the  iucome  of  a  fuud 
to  a  certain  married  woman  or  to  her 
and  her  assigns,  is  not  sufficient  to  pre- 
vent the  marital  rights  from  attaching. 
Lumb  v.  Milnes,  5  Yes.  517;  Browu  v. 
Clark,  3  Yes.  166;  Spirett  v.  Willows, 
11  Jur.  n.  s.  70.  Nor  is  a  devise  to  a 
certain  widow's  sole  use  and  benefit 
without  reference  to  a  future  husband. 
Gilbert  ».  Lewis,  1  DeG.  J.  &  M.  38. 
Even  a  gift  to  a  wife  "  for  her  use  "  has 
been  held  not  a  sufficiently  unequivo- 
cal declaration  of  an  intention  to  create 
a  trust  for  the  separate  use  of  the  wife. 
Jacobs  v.  Amyatt,  1  Madd.  376  n. ; 
Wills  v.  Savers,  4  Madd.  411  ;  Roberts 
v.  Spicer,  5  Madd.  491.  Some  words 
have  greater  efficacy  than  others. 
Thus  it  has  been  said  that  the  word 
"  enjoy  "  is  very  strong  to  imply  a  sep- 
arate use.  Sir  William  Fortescue,  iu 
Tyrrell  v.  Hope,  2  Atk.  558.  Aud  much 
controversy  has  arisen  in  the  English 
chancery  courts  over  the  use  of  the  word 
"  own  "as  synonymous  with  "sole,"  the 
result  of  which  is  to  establish  that  there 
is  a  substantial  distinction  between  a 
gift  to  a  wife  "  for  her  sole  use,"  and  a 
gift  '•  for  her  own  use,"  or  "  for  her  owu 
use  and  benefit."  Sec  Lord  Brougham's 
judgment  in  Tyler  v.  Lake,  2  Russ.  & 
M.  187;  Johnes  v.  Lockliart,  3  Bro  C. 
('  383  n. :  Peachey,  Mar.  Settl.  282. 
And  it  having  been  decided  that  the 
word  "  own  "  had  no  exclusive  meaning, 
it  was  nexl  determined  that  a  trust  to 
i  of  real  estate  into  the 
proper  hands  of  a  married  woman  for 
hei  own  use  and  benefit  was  not  a  gift 
to  the  wife's  separate  use,  the  word 
"proper"  being  the  Latin  form  of  the 
word  "  own,"  and  therefore  payment 
into  the  wife's  proper  hands  signifying 
the  same  thing  as  into  her  own  hands. 
Tyler  ».  Lake  2  Russ.  &  M.  187.  Lord 
ham   thus   in  effeel   overruled  a 

:i    '.I     Lord     Alvanlev,    who     had 

172 


held  that  the  use  of  the  word  "  proper  " 
would  create  a  separate  use.  Hartley 
v.  Hurle,  5  Ves.  545.  This  later  con- 
struction, coming  from  a  jurisdiction 
so  conclusive,  lias  since  prevailed, 
though  not  without  some  expressions 
of  dissatisfaction  in  the  lower  courts. 
See  Yice-Chancellor  Wigram  in  Black- 
low  v.  Laws,  2  Hare,  49 ;  Macq.  Hus. 
&  Wife,  309  ;  Peachey,  Mar.  Settl.  282. 
And  again,  language  of  the  donor,  ex- 
pressive of  his  intent  to  limit  property 
to  the  wife's  separate  use,  may  be  con- 
trolled by  other  words  or  provisions 
so  as  to  negative  such  a  supposition. 
This  principle  was  applied  to  the  wife's 
disadvantage  in  a  case  where  others 
were  made  the  objects  of  the  bounty 
with  her.  Wardle  o.  Claxton,  9  Sim. 
524.  And  see  Gilchrist  o.  Cator,  1  De 
G.  &  S.  188.  Yet  it  has  been  held  that 
a  gift  to  the  wife's  separate  use  was 
good,  although  the  support  aud  educa- 
tion of  children  was  annexed  as  a 
charge  upon  it.  Cape  v.  Cape,  2  You. 
&  Coll.  Exch.  543.  And  see  n.  to  Macq. 
Hus.  &  Wife,  310.  The  expression, 
"  her  intended  husband  "  may  apply  to 
a  second  husband,  where  there  are  words 
limiting  income  to  the  wife's  separate 
use  during  her  life,  for  this  latter  ex- 
pression controls  the  former.  Hawkes 
v.  Hubback,  L  R.  11  Eq.  5. 

Whether  the  word  "  sole  "  is  of  itself 
sufficient  to  create  a  separate  use  is 
doubtful.  Different  opinions  have  been 
expressed  on  this  point.  But  in  a  re- 
cent case  before  Yice-Chancellor  Kin- 
dersley  the  word  "sole"  was  deemed 
insufficient,  in  a  devise  of  property  to 
a  female,  her  heirs,  executors,  adminis- 
trators, and  assigns,  "for  her  and  their 
own  sole  and  absolute  use  and  benefit," 
to  create  a  separate  estate;  since  the 
word  "  sole,"  as  here  used,  had  refer- 
ence not  only  to  the  female  herself,  but 
to  her  heirs,  executors,  administrators, 
and  assigns,  who  certainly  could  not  be 
considered  beneficiaries  under  any  such 
trust.     Lewis  v.  Mathews,  L   R.  2  Eq. 


£HAP.  VIII.]         WIFE'S    SEPARATE   PROPERTY.  §  100 

in  regard  to  which  she  is  a  feme  sole,  the  husband,  by  making 
her  a  party,  admits  it  to  be  her  separate  estate.1 

§  10G.  Separate  Use  binds  Produce  of  Fund.  —  A  gift  of  the 
produce  of  a  fund  is  to  be  cousidered  a  gift  of  that  produce  in 
perpetuity  ;  hence  it  is  a  gift  of  the  fund  itself,  nothing  appear- 
ing to  show  a  different  intention.  Therefore  a  bequest  of  a  fund 
to  a  woman,  with  the  interest  thereon,  to  be  vested  in  trustees, 
—  the  income  arising  therefrom  to  be  for  her  separate  use  and 
benefit,  —  vests  the  capital  for  her  separate  use.2  Where  a 
testator  simply  directs  the  investment  of  a  fund  in  trustees,  for 
the  benefit  of  a  married  woman,  independent  of  the  control  of 
her  husband,  this  is  enough  to  carry  the  whole  fund  to  her 
separate  use.3  So  it  is  held  that  where  stock  was  given  to 
trustees  upon  trust,  to  pay  the  dividends  to  a  married  woman 
for  her  separate  use,  and  there  was  no  limitation  of  a  life  inter- 
est, an  absolute  interest  in  the  capital  passed  to  her,  which  she 
could  dispose  of  as  a,  feme  sole.4 

It  is  fair  to  suppose  that  in  equity  the  wife's  separate  use 
binds  the  produce  of  the  fund  as  well  as  the  fund  itself.  There 
are  some  cases  decided  in  the  courts  of  common  law  where  the 
contrary  has  been  maintained,  and  to  this  effect,  that,  although 
a  wife  may  be  entitled  to  separate  property,  the  dividends  aris- 
ing therefrom  vest  in  her  husband.5  This  is  no  reason,  however, 
why  the  equity  doctrine  should  not  be  as  we  have  stated ;  in- 
deed, if  it  were  otherwise,  as  an  English  writer  has  observed, 
the  object  of  separate  use  would  be  in  many  instances  frus- 
trated.6 What  the  wife  saves  out  of  her  separate  income,  too, 
if  its  identity  be  properly  preserved,  is  in  equity  her  separate 
estate.7     It  must  only  be  observed  that  income  or  produce  of 

177.     And  see  Troutbeck  v.  Boughey,  6  See  Macq.  Hus.  &  Wife,  291,  and  n. 

L.  R.  2  Eq.  534 ;  24  Ch.  D.  703.  And  see  dictum  of  Sir  Launcelot  Shad- 

1  Earl  v.  Ferris,  19  Beav.  69.  well,  in   Molony  v.  Kennedy,  10  Sim. 

2  Adamson  v.  Armitage,  19  Ves.  254  (quoted  ib.),  which  intimates  that 
416;  Macq.  Hus.  &  Wife,  311  ;  Trout-  this  is  the  equity  doctrine;  per  Lord 
beck  v.  Boughey,  L.  R.  2  Eq.  534.  Hardwicke,  Churchill  v.  Dibbin,  9  Sim. 

8  Simons  v.  Howard,  1  Keen,  7,  per  447  n.    Contra,  Peachey,  Mar.  Settl  263, 

Lord  Langdale.  where  cases  are  cited  which  do  not  sup- 

4  Elton  v.   Shephard,   1  Bro.  C.  C.  port  the  statement  in  the  text. 

532;  Haigy.  Swiney,  1  Sim.&  Stu.487.  ?  Barrack  v.  M'Culloch,  3  Kay  &  J. 

6  Tugman  ?>.  Hopkins,  4  Man.  &  Gr.  110;    Brooke   v.  Brooke,  4  Jur.   n.   s. 

389;  Carne  v.  Biice,  7  M.  &  W.  183.  472. 

173 


§   107  THE   DOMESTIC    RELATIONS.  [PART    II. 

the  fund,  if  once  in  the  husband's  hands,  may  readily  be  pre- 
sumed to  have  been  bestowed  upon  him  by  the  wife,  either  for 
himself  or  the  family  expenses. 

§  107.  Separate  Use  exists  only  during  Marriage;  Exceptions; 
Ambulatory  Operation.  —  The  quality  of  separate  estate  ceases 
on  the  death  of  the  wife ;  and  if  her  husband  survives  her,  he 
becomes  entitled  to  the  property  as  though  it  had  never  been 
settled  to  her  separate  use.  For  the  separate  use  was  created 
only  for  the  marriage  state,  and  was  not  designed  to  extend  be- 
yond the  dissolution  of  marriage,  or  when  the  necessity  of  the 
trust  should  be  no  longer  felt.  Thus  choses  in  possession  settled 
to  the  wife's  separate  use  vest  in  the  husband  absolutely  upon 
his  survivorship.1  The  wife's  separate  choses  in  action  may  be 
recovered  by  him  in  his  right  as  her  administrator.2  So,  doubt- 
less, her  separate  chattels  real  go  to  the  husband  as  survivor. 
In  short,  the  wife's  separate  property,  upon  the  wife's  death,  is 
freed  from  its  peculiar  incidents,  and  becomes  like  any  other 
estate  of  hers  which  may  remain  at  her  decease.3  And  it  seems 
clear  that  the  husband  may  be  tenant  by  the  curtesy,  as 
usual,  if  not  expressly  excluded  from  all  marital  interest.4 

Yet  the  wife  may  defeat  her  husband's  claim  after  her  death 
by  exercising  her  power  of  disposition  during  her  lifetime, —  a 
power  which  is  recognized  in  a  married  woman  so  far  as  her 
separate  property  is  concerned.5  So,  too,  by  the  terms  of  the 
trust,  the  husband's  rights  on  her  decease  may  be  prevented 
from  attaching.6 


1  Moloney  v.  Kennedy,  10  Sim.  254.  eluded  from  curtesy.     Moore  v.  Web- 

2  Proudley  <•.  Fielder,  2  Myl.  &  K.  ster,  L.  R.  3  Eq.  267. 

57;    Drary    v.    Scott;,  4   You.  *  &   Coll.  6  Macq.    IIus.    &   Wife,    2S5.      See 

Exch.  264";   Stead  v.  Clay,  1  Sim.  204.  post,  §  110. 

»  Macq.  Hus.  &  Wife,  285 ;  Peachey,         '''Johnstone  v.  Lumb,  15  Sim.  303. 

Mar.   Settl.  27s  ;  Sloper  v.  Cottrell,  6  Thus,  where  a  wife  entitled  to  separate 

EL  &  Bl.  501 ;  Bird  v.  Fegrum,  13  C.  B.  property  for  life,  under  a   settlement 

650;  8.  '  .  i;  Jur.  579.  which  directed  that  all  the  trust  prop- 

!    Lushington   v.  Sewell,  1   Sim.  548;  erty,  and  all   the  income   thereof  "  re- 

Roberta  v.  Dixwell,  l  Atk.  606,  per  I>'>rd  maining  unapplied  "at  her  death,  should 

Macq.   IIus.    &    Wife,  287;  go  in   a  certain    manner,   left   her  lius- 

Appleton    '■.    Rowley,    L.   It.  8Eq.  139;  band   some  years  before  her  death,  and 

Cooper  <•.   Macdonald,   L,  R.  7  Ch,  1).  the  trustees  received  the  income  regu- 

Otherwise,  where    by  the    terms  larly,  and  paid  it  into  a  bank  in  their 

of  the     eparati    a  e   the   husband  is  ex-  own    names,   with   her   privity,  making 

174 


CHAP.  VIII.]         WIFE'S    SEPARATE    PROPERTY.  §  108 

Since  the  separate  use  can  exist  only  in  the  marriage  state,  it 
may  sometimes  have  an  ambulatory  operation,  so  as  to  be  effect- 
ual according  as  the  woman  happens  at  the  time  to  be  covert  or 
sole.  Supposing,  then,  a  gift  be  made  to  the  separate  use  of  a 
woman  who  is  single  at  the  time  the  gift  takes  effect,  it  is  clear 
that  she  shall  enjoy  the  gift  absolutely  and  without  restraint. 
But  if  she  afterwards  marries,  will  the  separate  use  operate  ? 
It  will,  unless  by  the  terms  of  her  marriage  settlement  she  ex- 
pressly renounces  it.1  Supposing,  however,  she  outlives  her  hus- 
band, the  separate  use  ceases  as  in  other  cases,  since  it  can  only 
be  effectual  during  coverture.  But  if  she  marries  again,  the 
separate  use,  consistently  with  its  intention,  revives  once  more ; 
and  so  onward,  from  time  to  time,  ceasing  and  reviving  alter- 
nately upon  each  alteration  of  her  personal  condition,2  with, 
however,  this  reservation,  that  if  confined  by  intendment  to  a 
particular  husband  or  a  particular  coverture,  the  separate  use 
ceases  to  operate  when  that  marriage  ends.3 

§  108.  Wife's  Right  to  renounce  Separate  Use,  &c.  —  A  single 
woman,  having  a  gift  expressed  to  be  to  her  separate  use,  may 
renounce  such  separate  use  upon  her  marriage.  This  will  be 
readily  admitted.  Yet  the  courts  construe  an  act  of  this  sort 
strictly.4  The  evidence  must  be  clear  in  all  cases,  that  a  single 
woman  marrying  has  renounced  her  separate  use ;  for  it  will  not 
be  presumed  that  she  means,  by  the  mere  fact  of  matrimony,  to 
relinquish  her  control  of  the  property.  But  antenuptial  settle- 
ments may  be  made  on  reasonable  terms  by  the  parties  contem- 
plating marriage.  And  there  is  nothing  to  prevent  the  operation 
of  a  trust  for  separate  use  from   being  confined  to  a  particular 

remittances    to    her    as    she    required  1  Tullett   v.  Armstrong,  1   Beav.  1; 
money;  and  npon  the  wife's  death  the  Anderson    v.    Anderson,  2    Myl.  &   K. 
sum    of   £888  was   found    among    her  427;  Maeq.  Hus.  &  Wife,  305. 
effects,  and  a  balance  of  £2.049  accu-  -  Macq.  Hus.   &  Wife.  30G  ;  Tullett 
mulated  income  stood  to  the  credit  of  v.   Armstrong,  1    Beav.    1  ;  affirmed  by 
the  trustees  in  the  hank;  it  was  held  Lord    Cottenham,    4   Myl.   &  Cr.  377; 
by  the  Vice- Chancellor  of  England  that  Hawkes  v.  Huhback,  L.  R.  11  Eq.  5. 
the  former  went  to  the  surviving  hus-  3  2  Perry,  Trusts,   §§  652,  653,  and 
hand   by   virtue   of   his   marital   right,  cases  cited ;  Benson   v.  Benson,  6  Sim- 
while    the    latter    was    bound    by    the  26;  1  Ch.   Ca.  307;  1  Vern.  7;  Moore 
trusts   of    the   deed    as   the    result  of  i\  Harris,  4  Dr.  33. 
income  "  remaining  unapplied  "  at  her  4  Johnson  v.  Johnson,  1    Keen,  648  ; 
death.     lb.  Macq.  Hus.  &  Wife,  306. 

175 


§  109  THE   DOMESTIC   RELATIONS.  [PART   II. 

coverture,  where  all  concerned  are  so  minded.  In  such  cases, 
however,  the  wife  marrying  again  can  always  stipulate  for  her 
separate  use.1 

It  is  possible  that  a  provision  for  the  wife's  separate  use  may 
fail,  as  against  third  parties,  bona  fide  purchasers,  wherever  the 
husband  can  dispose  of  the  property  without  their  having  notice 
of  the  trust.2 

§  109.  Separate  Use  and  the  Marital  Obligations.  —  It  would 
appear  to  be  the  Euglish  doctrine  that  the  marital  obligations  of 
the  husband  are  not  essentially  altered  by  her  right  to  separate 
property.  Thus,  it  is  held  that  the  wife  is  not  bound  to  main- 
tain her  husband  out  of  her  separate  fortune,  nor  to  bring  any 
part  of  it  into  contribution  for  family  purposes.3  And  there 
seems  to  be  no  legal  authority  to  support  the  notion  that  the 
husband's  liabilities  on  her  general  debts  are  thereby  altered 
during  their  joint  lives.4  The  common-law  liabilities  of  the 
husband,  to  be  sure,  rest  in  great  measure  upon  his  right  to  his 
wife's  property ;  yet  we  may  admit  that  it  would  be  difficult  to 
adjust  any  new  rule  except  upon  partnership  principles.  If  one 
marries  a  rich  wife,  therefore,  who  chooses  to  hoard  her  savings 
by  herself,  bequeath  all  to  others,  and  compel  him,  a  poor  man, 
to  pay  for  everything  she  or  the  children  need,  all  their  lives,  he 
assuming  her  antenuptial  debts  besides,  it  is  possible  that  even 
equity  will  deny  him  relief.  We  here  suppose  that  neither  leg- 
islation nor  the  wife's  own  disposition  of  her  separate  property 
affects  the  question. 

Moreover,  the  wife  is  not  bound  to  maintain,  educate,  or  pro- 
vide for  her  children  out  of  her  separate  property ;  and  even 
though  she  elope  from  her  husband,  equity  will  not  lay  hold  of 
her  estate  for  that  purpose.6  And  yet,  whenever  a  settlement 
of  the  wife's  equity  is  decreed,  where  the  husband  or  his  legal 
representative  seeks  to  recover  for  himself  her  choses  in  action, 

1   Macq.    Hub.   &   Wife,    .307.      See  4  See  Macq.  Hus.  &  Wife,  288.     But 

Knight  v.  Knight,  <<  Sim.  121  ;  Bradley  see  infra,  cs.  9-12;  In  re  Baker's  Trusts, 

V.  Bnghes,  8  Sim.  140  ;  Benson  v.  Ben-  L.  R.  13  Eq.  168. 

son,  6  8im   126.  5  Hodgden  v.  Eodgden,  4  CI.  &  Fin. 

'2  Parker    n.    Brooke,    9   Ves.    583;  323,  reversing  the  decree  of  the  court 

Macq.    IIn-    &    Wife,  291.  below.     But  see  legislation  in  England, 

'■■■  Lamb  v.  Milnes,  5  Ves.  520.     See  §111. 
S  128. 

176 


CHAP.  VIII- ]         WIFE'S    SEPARATE    PROPERTY.  §  HO 

the  children  of  the  marriage  are  included  within  its  benefits ; 
though,  to  be  sure,  the  wife  may  waive  the  claim  altogether 
without  reference  to  them.1 

§  110.  Clause  of  Restraint  upon  Anticipation.  —  The  clause 
of  restraint  upon  anticipation  is  an  important  element  in  the 
doctrine  of  the  wife's  separate  use,  as  administered  in  England. 
This  clause  was  sanctioned  by  Lord  Thurlow;2  is  frequently  to 
be  met  with  in  modern  conveyances;  and  is  pronounced  by  Mr. 
Maequeen,  and  by  eminent  English  jurists,  a  salutary  clause 
which  takes  from  the  wife  the  power  of  bringing  ruin  upon  her- 
self.3 The  restraint  applies  not  only  to  personal  but  also  to 
landed  property.4  It  may  be  imposed  equally  upon  estates  for 
life  or  in  fee.5  It  prevents  the  fund  from  being  attached  in  ex- 
ecution upon  process  against  husband  and  wife.6  It  makes  cove- 
nants ineffectual  to  settle  after-acquired  property  thus  embraced.7 

The  name  of  this  important  clause  originates  in  the  circum- 
stances under  which  it  was  first  applied.8  The  general  purport 
of  this  expression  is  that  the  wife  shall  be  prohibited  the  antici- 
pation of  the  income  of  her  separate  property  or  the  anticipation 
of  the  capital  of  the  fund.  Yet  the  word  "  anticipation  "  need 
not  be  used  in  clauses  of  this  sort,  nor  is  any  particular  form  of 
expression  necessary.9  Like  the  separate  use  itself,  this  clause 
of  restraint  on  anticipation  exists  only  in  the  marriage  state  ; 


i  See  Sehouler,  Hus.  &  Wife,  §§160-  1  Gibson   v.  Way,   32    Ch.  D.    361. 

162 ;  supra,  §  85,  as  to  the  wife's  equity  See  31  Ch.  D.  275,  596  ;  35  Ch.  D.  4. 

to  a  settlement.  8  See  Pybus  v.  Smith,  3  Bro.  C.  C 

2  Miss  Watson's  Case.  See  Pybus  340 ;  Jodrell  v.  Jodrell,  9  Beav.  59. 
v.  Smith,  3  Bro.  C.  C.  340,  n.  This  Under  Acts  44  &  45  Vict.  c.  41  (1881) 
doctrine  was  afterwards  affirmed  in  the  court  is  permitted  to  sanction  the 
Jackson  v.  Hobhouse,  2  Mer.  487,  by  binding  of  a  wife's  interest  with  her 
Lord  Eldon.  assent,    wherever    ic   appears    for    her 

3  See  Macq.  Hus  &  Wife,  312.  benefit,  notwithstanding  this  clause  of 

4  Baggett  v.  Meux,  1  Phil.  627,  per  restraint.  And  see  later  Acts,  1882 
Lord  Lvndhurst;  1  Coll.  138;  Macq.  and  1893,  construed  in  (1891)  2  Q.  B. 
Hus.  &  Wife,  312  ;  Peachey,  Mar.  Settl.  422  ;  (1894)  3  Ch.  135  ;  (1894)  2  Q.  B. 
284.     Nor  can  she  join  her  husband  in  559. 

a  power  of  attorney  to  receive  or  sue  9  Per  Lord  Cranworth,  In  re  Ross's 

for    moneys  tied    up    by   this    clause.  Trust,  1    Sim.  199;  Doolan  v.  Blake,  3 

Keurick  v.   Wood,  L.  R.  9  Eq.  333.  Ir.  Ch.  349 ;  Peachey,  Mar.  Settl.  287  ; 

5  77>.  Tullett  v.  Armstrong,  1  Beav.  1  ;  Steed- 

6  Chapman  i'.  Biggs,  11  Q.  B.  D.  27 ;  man  v.  Poole.  6  Hare,  193;  Sehouler, 
14  Q.  B.  D.  973.  Hus.  &  Wife,  §  202,  and  cases  cited. 

12  177 


§  111  THE   DOMESTIC    RELATIONS.  [PAllT    II. 

it  does  uot  prevent  or  interfere  with  the  receipt  of  regular  in- 
come; and  property  vested  in  a  single  woman  she  may  dispose 
of  absolutely,  despite  such  limitation,  so  long  as  she  remains  un- 
married ;  but  upon  her  coverture,  while  retaining  such  property, 
the  separate  use  and  the  restraint  upon  anticipation  attach  and 
become  effective  together,  cease  together  upon  her  widowhood, 
and  revive  together  upon  her  remarriage.1  Separate  use  is 
not  inferable  from  a  mere  restraint  clause  ;  and  anticipation  can- 
not be  prevented  unless  the  income  is  given  for  the  wife's  sepa- 
rate use.2 

§  111.  Separate  Use  in  Common-Law  Courts  ;  English  Married 
Women's  Acts.  —  Although  the  wife's  separate  use  is  the  crea- 
ture of  equity,  and  specially  consigned  to  its  watchful  keeping, 
courts  of  law  will  sometimes  afford  it  protection.  This  seems 
to  be,  however,  only  in  cases  where  a  trustee  is  interposed  to 
hold  the  legal  estate ;  for  since  the  common-law  courts  maintain 
their  own  maxims,  there  should  be  some  person  designated  to 
hold  the  fund  for  the  wife  ;  and  such  person  will  be  considered  as 
the  legal  owner  so  as  to  save  the  property  from  attachment  and 
sale  for  the  husband's  debts.3 

Under  a  recent  act  of  1870  important  changes  are  made  with 
the  view  of  creating  a  statutory  separate  estate  in  married 
women.4     Legislation,  still  later,  repeals  the  act  of  1870,  and 


1  Tullett  v.  Armstrong,   1  Beav.  1  ;  deposits  in  savings  banks  (with  a  pro- 

4  Myl.    &   Cr.   377;  Schouler,   Hus.  &  viso) ;    also    upon    the    observance    of 

Wile,  §  202;  Clarke  v.  Jaques,  1  Beav.  certain  formalities,  her  property  in  the 

36;  Dixon  v.  Dixon,  1   Beav.  40.     See,  funds,  joint-stock  companies,  &c. ;  per- 

as  to    the    income    of    accumulations,  sonal  property  coming   to  her  not  ex- 

Thomaa    v,    Spencer,   30   Ch.     D.    183.  ceeding  .£200;  rents  and  profits  of  her 

And  as  to  rights  to  receive  capital,  see  freehold    property;    policies  of    insur- 

27  Ch.  I).  411.  ance   for    benefit    of    wife    (trusts   for 

-  Stogdon   v.   Lee  (1891),  1     Q.    B.  benefit  of  wife  and  children  being  also 

•i»;i.  permitted). 

:  See    [zod   '•.  Lamb,  1   Cr.  &  J.  35;  This  moderate  act   is  doubtless  the 

Davison    v.    Atkinson,    5    T.    It.  434;  result  of  influences  such  as  were  first 

Dean  v.  Brown,  2  Car.  &  I'.  62;  Macq.  manifested  in  the  United  States.     The 

i            vVife,  291.  American    legislation   on   this  subject 

1  See  Act 33  & 84  Vict.  C.  93  (1870);  long    antedates    tin-     English.       Other 

Qneen  <-.  ('arnatic  It.  It.  Co.,  I..  It.  8  Q.  provisions  arc   found   in   this  act,  whose 

I'.       19.     This  act  declares  that,  wages  appropriate  consideration  belongs  to  a 

timings  of  a  married  woman  shall  later  chapter. 
be    hex    separate    property ;    also    her 

178 


CHAP.  IX.]  WIFE'S    SEPARATE   PROPERTY.  §  112 

makes  a  new  and  more  comprehensive  property  act  of  1892,  in 
favor  of  the  wife's  independent  capacity ; *  nor  is  this  the  last 
of  such  marital  legislation.2 


CHAPTER    IX. 

THE   WIFE'S   SEPARATE   PROPERTY;  AMERICAN   DOCTRINE. 

§  112.  Early  American  Rule. — The  doctrine  of  the  wife's 
separate  estate  is  one  of  peculiar  growth  and  development  in 
this  country,  though  doubtless  originating  in  the  maxims  of  the 
English  chancery,  and  deriving  much  of  its  strength  from  the 
splendid  accomplishments  of  Langdale,  Thurlow,  and  Eldon,  in 
their  own  land.  What  such  men  and  their  successors  effected 
by  judicial  policy,  we  have  carried  into  our  statutes;  nay,  we 
have  gone  further.  In  England  the  equitable  rights  of  married 
women  are  the  triumph  of  the  bench ;  with  us  the  early  efforts 
of  the  bench  have  been  eclipsed  by  the  later  achievements  of 
the  legislature,  and  the  judge  follows  the  lawgiver  to  restrain 
rather  than  enlarge.  There,  in  historical  sequence,  it  was  proper 
to  study  first  the  equitable  doctrine  of  separate  property ;  here 
the  statutory  doctrine  may  well  take  precedence. 

When  this  country  was  first  settled,  the  separate  use  was 
but  little  understood  in  England.  Its  development  there  was 
gradual,  and  its  final  establishment  of  a  later  date.  Our  ances- 
tors brought  over  the  common  law  with  them ;  but  for  equity 
they  had  little  respect.  True,  it  cannot  be  said  that,  by  the 
jurisprudence  of  a  single  State,  property  bestowed  upon  a  mar- 

1  See  Act  45  &  40  Vict.  c.  75.     Ante-  the  extent  of  her  property,  and  of  suing 

nuptial  debts  and  liabilities  of  the  wife  and  being  sued  on  the  footing  of  a  feme 

are  thus  provided  for  at  length;  loans  sole.     And  see  §  53,  as  to  evidence  of 

by   wife   to   husband;   maintenance   of  spouses,  under  Act  47  &  48  Vict.  c.  14. 
children  and  husband   out  of   separate  A  mere  "  hope  of  succession  "  is  not 

estate  in  deserving  cases ,  questions  of  a  title  to  property  as  contingent  which 

title  to  property  ;  etc.     As  to  the  status  the  Act  of  1882  reserves  to  the  husband, 

of   a   married    woman,   it   renders   her  45  Ch.  D.  51. 

capable,  of  acquiring  property  and   of  '<*  See  Act  56  &  57  Vict.   (1893). 

rendering  herself  liable  on  contracts  to 

179 


§  112  THE   DOMESTIC    RELATION**.  [PART    II. 

ried  woman  to  her  separate  use,  free  from  the  control  and  inter- 
ference of  her  husband,  would  remain  subject,  notwithstanding, 
to  his  marital  dominion  ;  but  prior  to  the  late  married  women's 
acts  there  were,  in  many  States,  no  judicial  precedents  to  com- 
bat such  an  assumption.  That  such  trusts  might  be  created 
was  not  denied ;  but  whether  there  were  courts  with  authority 
to  enforce  them  appeared  frequently  doubtful.1  In  the  New 
England  States  scarcely  a  vestige  of  the  separate  use  was  to  be 
found.2  New  York,  with  such  eminent  chancellors  as  Kent  and 
Walworth,  took  the  lead  in  building  up  an  equity  system  par- 
allel with  that  of  England  ;  and  in  the  reports  of  this  State  are 
to  be  found  most  of  the  leading  cases  and  the  ablest  discussions 
of  what  may  be  termed  American  chancery  doctrines.  New 
Jersey  recognized  the  separate  use,  and  her  chancery  court 
exercised  liberal  powers.  In  Pennsylvania  the  doctrine  was 
recognized  to  some  extent.  The  courts  of  Maryland,  Virginia, 
and  the  Southern  States  generally,  had  frequent  occasion  to 
apply  the  separate-use  doctrine ;  none  more  so  than  those  of 
North  and  South  Carolina.  And  it  may  be  remarked  that  the 
aristocratic  element  of  society  in  that  section  of  the  country, 
also  a  prevalent  disposition  for  family  entails,  marriage  settle- 
ments, and  fetters  upon  the  transmission  of  landed  property, 
aided  much  in  developing  therein  the  English  chancery  system. 
So  was  it  in  Kentucky  and  Tennessee,  States  founded  upon  like 
institutions.  But  as  to  Ohio,  Indiana,  Illinois,  and  the  other 
States  erected  from  what  was  formerly  known  as  the  Northwest 
Territory,  society  was  modelled  more  after  New  England,  and 
we  find  no  clear  recognition  of  the  wife's  equitable  separate  use. 

1  It  is  true  that  the  general  recog-  dally  favored  chancery  jurisprudence, 
nition  here  "1*  the  wife's  separate  use  The  want  of  a  general  recognition  of 
has  been  presumed  by  our  text-writers,  the  wife's  separate  use,  as  unfolded  in 
See  2  Kent,  Com.  102;  Reeve,  Dora.  England,  aids  in  explaining  the  curious 
Rel.  162;  'J  Story,  Eq.  Juris.  §  l.');«  w  fact  that  our  States  were  legislated 
seq.  We  confine  our  observation  to  into  a  system  which  the  English  chancery 
judicial  precedents.  What  Chancellor  had  felt  competent  to  rear  unaided. 
Kenl  has  to  Bay  onthe  American  equity  a  Jones  v.  JEtna  Ins.  Co.,  14  Conn. 
doctrines  in  his  work  must  l/c  taken  by  501,  intimated  that  the  married  woman 
the  general  student,  with  some  qualifi-  could  not,  in  Connecticut ,  lie  the  inde- 
ntions, inasmuch  as  the  learned  writer  pendent  owner  of  property.  But  see 
draws  largel;  opon  his  judicial  opin-  Pinney  v.  Fellows,  15  Vt.  525  (1843). 
ions  rendered   in  a  State  which  espe 

1 80 


CHAP.  IX.]  WIFE'S   SEPARATE   PROPERTY.  §  113 

Louisiana,  and  such  contiguous  States  as  were  originally  gov- 
erned by  French  and  Spanish  laws  had  more  or  less  of  the 
civil  or  community  system ;  and  to  these  States  English  equity 
maxims  had  at  best  only  a  limited  application.  Such,  then,  is 
the  wife's  separate  use,  viewed  in  the  light  of  judicial  prece- 
dents, as  known  in  the  United  States  until  very  nearly  the 
middle  of  the  nineteenth  century.1 

But  where  recognized  and  enforced  at  all,  the  strict  American 
rule  was  borrowed  from  that  of  England  ;  and  such,  too,  has 
been  the  later  development,  as  we  shall  show  hereafter.2 

§  113.  The  Late  Married  Women's  Acts  ;  Social  Revolution. 
—  The  wife's  separate  use,  as  an  American  system,  or  rather  as 
the  system  of  certain  American  States,  had  thus  progressed 
when  our  local  legislatures  took  the  whole  subject  actively  in 
hand.  The  American  equity  courts  had  followed  the  English 
precedents  pretty  closely,  but  without  displaying  the  same 
vigor  and  boldness.  None  of  our  reported  decisions  on  the 
subject  of  the  wife's  equitable  separate  property  had  attracted 
popular  attention  or  served  to  bring  out  the  discussion  of 
strong  leading  principles,  though  covering  a  period  of  sixty  years 
down  nearly  to  the  middle  of  the  present  century.  During 
the  twenty-five  years  preceding  1848,  a  change  in  public  opin- 
ion had  been  gradually  wrought  in  this  country  and  in  England, 
though  with  us  more  rapidly  than  abroad.  The  married  woman 
of  America  turned  to  the  legislature  rather  than  the  courts  of 
her  State  for  a  more  complete  marital  independence,  for  the 
right  to  control  her  own  property,  for  freedom  from  the  bur- 
dens of  coverture.  In  shaping  popular  sentiment,  doubtless, 
the  annexation  of  territory  lately  governed  by  the  principles 
of  Roman  law  had  considerable  influence,  particularly  in  the 
States  adjacent  to  Louisiana  ;  still  more  in  a  national  sense  did 

1  See  U.  S.  Eq.  Dig.  Hus.  &  Wife,  ren  v.  Haley,  1  S.  &  M.  Ch.  647 ;  Ham- 

12;  Reade  v.  Livingston,  3  Johns.  Ch.  ilton  v.  Bishop,  8  Yerg.  33;  Griffith  v. 

481;    Meth.  Ep.    Church    v.   Jaques,    1  Griffith,  5  B.  Monr.  113  ;  McKennan  v. 

Johns.    Ch.   65;    Rogers   v.   Rogers,   4  Phillips,  6  Whart.  571  ;  Gray  v.  Crook, 

Paige,  516;  Vernon  v.  Marsh,  2  Green  12  Gill  &  J.  236;  Howard  v.  Menifee, 

Ch.  502  ;  Steel  v.  Steel,  1  Ired.  Eq.  452  ;  5  Pike.  668. 

Jackson  v.   McAliley,  Speers  Eq.  303 ;  2  gee  p0Sfj  as  t0  equitahle  separate 

Boykin   v.  Ciples,  2   Hill   Ch.  200,  204;  property    of   married   women,   §§   123- 

Huut  v.  Booth,  1  Freem.  Ch.  215 ;  War-  129. 

181 


§  113  THE   DOMESTIC   RELATIONS.  [PART    II. 

our  rapid  advancement  as  a  self-governed  nation,  and  the 
spread  of  public  education,  of  independence  in  life  and  man- 
ners, and  of  equal  social  intercourse  of  the  sexes,  help  on  the 
new  reform.  The  year  1848  saw  a  wondrous  revolution  ef- 
fected in  the  foremost  States  of  this  Union  as  to  the  property 
rights  of  married  women ;  and  this  revolution  has  since  ex- 
tended to  every  section  of  the  country.  The  influence  of  these 
changes  has  also  been  felt  abroad ;  and  a  like  reform  was 
pressed  in  the  English  Parliament  about  1870,  whose  im- 
mediate result  was  the  statute  to  which  we  have  already 
alluded.1 

In  1821  the  legislature  of  Maine  had  authorized  the.  wife, 
when  deserted  by  her  husband,  to  sue,  make  contracts,  and 
convey  real  estate  as  if  unmarried,  prescribing  the  mode  of 
procedure  in  such  cases.  A  like  law  previously  existed  in 
Massachusetts.2  These  appear  to  have  been  the  earliest  of  the 
married  women's  acts,  properly  so  called,  —  the  first-fruits  of  the 
modern  agitation  on  woman's  rights.  The  example  of  Massa- 
chusetts and  Maine  in  this  respect  was  soon  imitated  elsewhere. 
New  Hampshire,  Vermont,  Tennessee,  Kentucky,  and  Michigan., 
all  passed  important  laws  of  a  similar  character  before  1850. 
The  independence  of  married  women  whose  husbands  were 
convicts,  runaway*,  and  profligates  became  thus  the  first  point 
gained  in  the  new  system.  In  Massachusetts  and  Ehode  Isl- 
and the  wife's  separate  use  in  life-insurance  contracts  for  her 
benefit  was  an  object  of  special  solicitude;  then,  in  1845,  the 
former  State  turned  its  attention  further  to  a  public  recognition 
of  marriage  settlements  and  trusts  for  the  wife's  separate  ben- 
efit, extending  the  equity  jurisdiction  of  its  courts  for  that 
purpose.8  The  right  of  a  married  woman  to  dispose  of  her 
property  by  will  was  legalized  in  Illinois,  Pennsylvania,  Mich- 

1  See  3  Juridical  Society  Papers  enactments.  These  are  indications  of 
(1870),  part  17;  Act  33  &  34  Vict.  c.  what  the  text  has  already  stated  ;  that 
98,  1870,  under  §  111,  tupra.  trusts   for  separate  use  and   equity  ju-, 

2  See  Rev,  Sts.  Maine  (1840),  p  341  ;  risdiction  on  the  wife's  hehalf  were  little 
Rev.  Ste.  Mass.  (1830).  pp.  485,  487.  recognized  in  that  section  when    the 

3  A  New  Hampshire  act  in  1846  married  women's  agitation  commenced 
copii  1  these  provisions  ;  and  a  statute  in  the  United  States. 

of  Rhode    island    in   1841  made  similar 

182 


CHAP.  IX.]  WIFE'S    SEPARATE   PROPERTY.  §  113 

igan,  .and  Connecticut  about  the  same  time.  In  Connecticut, 
Ohio,  Indiana,  and  Missouri,  the  first  reforms  appear  to  have 
been  directed  towards  exempting  the  wife's  property  from  lia- 
bility for  her  husband's  debts,  rather  than  giving  her  a  complete 
dominion  over  it.1 

The  Roman  principle  of  an  independent  estate  in  the  wife,  as 
modified  by  the  more  modern  French  and  Spanish  community 
law,  prevailed  in  Louisiana  at  the  time  of  its  admission  into  the 
Union ;  and  like  traces  appear  in  the  legislation  of  Florida, 
Arkansas,  Texas,  and  other  adjacent  States  formerly  under  French 
and  Spanish  rule.  So  was  the  doctrine  of  separate  estate  pro- 
mulgated by  Mississippi  statute  as  early  as  1839.2  And  in  other 
Southern  States,  as  Alabama  and  North  Carolina,  where  chancery 
jurisprudence  was  well  established,  appeared  laws  investing  the 
courts  with  larger  powers  in  matters  of  this  sort,3  Alabama 
and  Mississippi  appear  to  have  first  postponed  the  husband's 
liability  for  his  wife's  antenuptial  debts  to  her  separate  estate.4 

But  the  sweeping  changes  effected  by  the  legislature  of  New 
York  in  1848  deserve  more  than  a  passing  notice.  The  debates 
of  the  constitutional  convention  of  that  State  in  1846  evinced 
the  growing  desire  for  a  radical  reform  in  the  property  rights  of 
married  women  ;  and  the  advocates  of  the  movement,  failing  in 
their  attempt  to  secure  an  article  of  amendment  to  the  State 
constitution  on  their  behalf,  next  addressed  themselves  to  the 
legislature,  and  with  success.  On  the  7th  of  April,  1848,  was 
enacted  a  law  "  for  the  more  effectual  protection  of  married 
women,"  which  provides  that  the  real  and  personal  property  of 
any  female  alread}^  married,  or  who  may  hereafter  marry,  which 
she  shall  own  at  the  time  of  marriage,  and  the  rents,  issues  and 
profits  thereof,  shall  not  be  subject  to  the  disposal  of  her  hus- 
band, nor  be  liable  for  his  debts,  and  shall  continue  her  sole 

1  See  2  Bright,  Hus.  &  Wife,  Am.  settled  territory  surrounding  it.  The 
ed.  1850,  p.  627  et  seq.,  where  married  codes  of  these  States  were  all  disfig- 
women's  acts  are  cited  by  Mr.  Lock-  ured  by  "  cbattel  "  provisions,  which 
wood;  2  Kent,  Com   130,  n,  detracted  much   from  the  merits  of  a 

2  See  1   Bright,  Hus.  &  Wife,  Am.  policy  otherwise  humane  to  the  wife. 
ed.  1850,  p.  627  et  seq.     The  influence  of  3  2  Bright,  ib. 

a  large  commercial  city  like  New  Or-  4  76.  (1846). 

leans  was  doubtless  felt  in  the  sparsely 

183 


113 


THE   DOMESTIC   RELATIONS. 


[PART   IT. 


and  separate  property  as  if  she  were  a  single  female ;  and  that 
any  married  female  may  lawfully  receive  and  hold  property  in 
like  manner  from  any  person  other  than  her  husband,  whether 
by  gift,  grant,  devise,  or  bequest.  This  statute,  passed  at  such 
a  time  by  the  foremost  State  in  the  Union,  —  a  State  thoroughly 
Northern  in  its  institutions,  while  the  recognized  champion  of 
chancery  principles, —  could  not  fail  to  make  a  deep  national 
impression.1  A  parallel  movement  had  meanwhile  progressed 
in  Pennsylvania ;  and  in  that  State  an  act  of  the  legislature, 
dated  only  four  days  later,  conferred  substantially  the  same 
rights  of  property  upon  married  women,  though  expressed  in 
different  language.2 

From  this  time  forth  the  revolution  became  rapid,  and  has 
since  extended  to  all  the  States,  Virginia  being  the  last  among  the 
older  ones  to  yield.  And  the  work  of  legislative  change  still  goes 
on.  Scarcely  a  year  passed  between  1850  and  1870  without  some 
new  married  women's  acts  added  to  the  local  statute-books  ; 3 


1  We  give  the  substance  rather  than 
the  language  of  this  statute.  See  2 
Bright,  Hus.  &  Wife,  Am.  ed.  1850, 
Lockwood's  note,  5S1  et  seq.  This  stat- 
ute was  afterwards  considerably  modi- 
tied  by  arts  of  1849,  c.  375,  and  1860, 
c.  90.  §  1. 

2  Bright,  ib.,  p.  648;  Laws  Penn. 
1848,  pp.  536-538.  It  should  he  said 
that  both  Maine  and  Michigan  had  en- 
acted laws  in  1844,  giving  enlarged 
powers  to  the  wife  to  hold  and  dispose 
of  separate  property,  thus  anticipating 
BOme  of  the  statutory  changes  both  in 
New  Fork  and  Pennsylvania.  Rev. 
Stat.  Mich.  (1846)  p.  340;  Maine  Stat- 
lit.-,  Manh  22, 1S41.  The  Constitution 
of  California  in  l^t'.i  recognized  the 
property  rights  of  married  women. 
though  perhaps  deriving  its  idea  some- 
what from  the  Spanish  American  com- 
munity.      One     or    two    other     States. 

before  the  Civil  War,  embraced  this 
topic  of  new  interest  in  their  funda- 
mental  law. 

•;  The    acta    now    in    force,   many  of 

them  perplexing,  which  need  not  here 
be  detailed,  will  be  found  summarized 
184 


to  1882  in  Schouler,  Hus.  &  Wife, 
Appeudix.  More  or  less  liberality  is 
shown  in  different  States  in  the  legis- 
lative grant  of  separate  property,  but 
the  tendency  on  the  whole  is  to  place 
the  married  woman  on  the  footing  of  a 
feme  sole  in  respect  of  property  and 
kindred  rights  of  suit  and  contract. 

In  the  Southern  Law  Review,  vol.  6, 
p.  663,  will  he  found  an  instructive 
article  by  Professor  Henry  Hitchcock, 
commenting  upon  marital  property 
rights  as  defined  by  American  Statutes 
in  force  in  1880.  Detailing  the  statu- 
tory changes  which  have  occurred,  the 
author  calls  attention  to  the  fact  that 
in  Connecticut,  beginning  with  the  Act 
of  1845,  there  were  eleven  successive 
statutes  passed  at  intervals  during  the 
twenty- one  years  ending  in  1866.  Ami 
see  Jackson  '-.  Hubbard,  36  Conn.  10, 
<m  this  point.  Afterward  another  stat- 
ute was  passed  in  this  State  in  1869, 
and  still  another  in  1872,  and  then,  at 
the  general  revision  of  the  statutes  in 
1875,  a  further  amendment  took  place. 
This  is  a  marked,  bat  nol  except ional 
instance  of  State  innovations  in  the  law 


CHAP.  IX.]     WIFE'S  SEPARATE  PROPERTY. 


§114 


numerous  other  modified  acts  have  since  been  embodied  iu  the 
codes;1  and  with  regard  to  woman  in  general,  the  constant 
tendency  has  been  to  enlarge  her  freedom  of  action,  and  open 
to  her  sex  pursuits  hitherto  closed  against#it. 

§  114.  Scope  of  Married  Women's  Acts  ;  Constitutional  Points. 
—  The  main  principles  touching  the  acquisition  of  a  statutory 
separate  property  by  the  wife,  as  an  American  system  of  posi- 
tive law,  we  shall  now  consider  as  fairly  as  the  circumstances 
permit.  And,  first,  it  may  be  remarked  in  general  that  these 
American  married  women's  acts  are  designed  for  woman's  bene- 
fit, and  that  they  do  not  limit,  but  rather  extend,  her  former 
right  beneficially  to  hold  separate  property.2  Where  she  is  held 
to  be  restricted  by  the  statute  at  all,  it  is  generally  with  refer- 
ence to  the  right  of  disposition,  and  in  order  that  others  may 
not  subject  it  to  the  fulfilment  of  her  engagements.3  We  shall 
presently  see,  moreover,  in  the  course  of  our  exposition,  that  the 
doctrines  of  an  ecpaitable  separate  estate  in  the  wife  are  gener- 
ally invoked  at  this  day  as  furnishing  a  system  available  for 
her  advantage,  wherever  (as  rarely  happens)  the  statutory  priv- 
ileges, in  any  particular  instance,  prove  less  adequate  for  estab- 
lishing her  independent  property  relations;  the  main  policy  of 
the  married  women's    acts  being,  not  to  supersede   the   wife's 


of  Husband  and  Wife.  Between  1850 
and  1860  inclusive,  notes  the  writer,  the 
following  States  began  their  married 
women's  legislation,  some  boldly,  others 
timidly  :  Indiana,  Missouri,  New  Jersey, 
Kansas ;  Ohio  and  Illinois  followed  in 
1861,  and  other  States  successively  in 
subsequent  years.  In  1869  Congress 
enacted,  for  the  benefit  of  married 
women  in  the  District  of  Columbia,  one 
of  the  most  radical  laws  on  the  subject. 
Tbe  last  of  the  then  existing  States  to 
fall  into  line  was  Virginia,  in  1877,  and 
tbe  latest  States  observe  this  policy. 

1  See  Stimson,  Am.  Stat.  Law, 
§§  6420-6422.  This  writer  (1886)  thus 
analyzes  tbe  topics  of  our  marital  legis- 
lation making  the  wife's  property  her 
sole  and  separate  property  :  (1)  tbe  real 
property  possessed  at  marriage  in  all 
States  ;  (2)  her  personal  property  at  her 


marriage  in  most  States ;  (.3)  in  all 
States  all  real  property  acquired  since 
marriage,  either  (a)  by  devise  or  de- 
scent, (b)  or  by  purchase,  (c)  or  by  gift, 
(<l)  or  by  her  own  labor,  (c)  or  in  any 
other  manner  ;  (4)  so  in  most  States  all 
personalty  acquired  (a)  by  devise  or 
descent  (semble  legacy  or  distribution), 
(b)  or  by  gift,  (c)  or  by  purchase, 
(d)  or  in  any  way.  (5)  So  in  most 
States  her  personal  earnings,  etc.  See 
qualifications  here  specified  ;  also  as  to 
community,  etc.,  in  certain  parts  of  this 
country,  supra,  §  7. 

'-'  Blevins  v.  Buck,  26  Ala.  292  ;  Gil- 
lespie v.  Beecher,  94  Mich.  374. 

3  See  Davis  v.  Foy,  7  S.  &  M.  64 ; 
Pond  v.  Carpenter,  12  Minn.  430;  Tip- 
pen  v.  Wesson,  74  N.  C.  437.  The  sub- 
ject of  the  wife's  right  of  disposition 
is  discussed  in  a  later  chapter. 

185 


§  114  THE   DOMESTIC   RELATIONS.  [PART    II. 

equitable  rights,  but  to  enlarge  her  legal  status,  and  correct 
the  old  anomaly  which  left  her  a  person  in  equity  but  none  in 
law.1 

These  statutes  are  not  subject  to  mere  technical  construction, 
but  the  will  of  the  legislature  should  be  fairly  interpreted. 
The  legislative  will  is  not  presumed  to  be  so  exerted  as  to 
operate  retrospectively.  "  A  retrospective  statute,  affecting  and 
changing  vested  rights,"  observes  Chancellor  Kent,  "  is  very 
generally  considered  in  this  country  as  founded  on  unconstitu- 
tional principles,  and  consequently  inoperative  and  void."  2  The 
whole  current  of  American  decisions  confirms  that  statement ; 
and  thus  is  it  with  our  married  women's  acts,  for  they  neces- 
sarily reduce  the  property  rights  of  the  husband  as  prevalent 
under  the  common  law  of  coverture.  The  respective  rights  of 
a  husband  and  wife,  duly  married,  in  property  acquired  in 
any  State,  before  fundamental  law  or  appropriate  legislation 
therein  has  changed  the  old  rule,  must  accordingly  be  governed 
by  the  rules  previously  in  force.3  Where  a  complete  legal 
estate  in  the  wife's  lands  has  already  vested  in  the  husband, 
it  is  not  taken  away  from  him.4  The  effect  of  a  previous  con- 
veyance of  land  to  husband  and  wife  jointly  is  not  changed  in 
respect  of  survivorship.5     The  wife's  personal  property  already 

1  The  object  being  to  remove  rover-  statute  nor  State  constitution  can  take 
ture  disabilities  by  such  legislation,  an  away  from  the  husband  any  property 
infancy  disability  is  not  presumably  rights  already  vested  in  him.  Allen  v. 
affected.     82  Me.  260.  Hanks,    136 'u.    S.   300.     Cf.   92   Ala. 

2  1    Kent,    Com.   455.     Various   na-  176. 

tional   and   State   constitutional    provi-  3  Carter  v.   Carter,  14  S.  &  M.  59; 

sions —  as,  e.  g.,  that  no  one  shall  be  Schouler,  Hns.  &  Wife,  §  211,  and  cases 

deprived  of  property  "  without  due  pro-  cited;  Eldridge  v.  Preble,  34  Me.  148; 

cess  of  law,"  and  against  impairing  the  Quigley  v.   Graham,  18  Ohio  St.  42; 

obligation  of  contracts  —  have  a  similar  Farrell  v.  Patterson,  43  111.  52  ;  Coombs 

bearing.     An  act  which  authorizes  mar-  v.  Read,  16  Gray,  271;  Leete  v.  State 

ried  women    to  contract   and   be   con-  Bank,  115  Mo.  184.     So  rights  acquired 

tracted  with   in  the  same  manner  as  if  subsequently  under  a  foreign    govern- 

unmarried   is  constitutional     15  S.   C.  ment.     Dubois  v.  Jackson,  49  111.  49. 
581.     See  further,  Baker  v.  Kilgore,  145         4  Bouknight  v.  Epting,  11  S.  C.  71. 

rj.S   '""      A  State  may  by  fundamental  And     hence     the     husband's     interest 

law   or   statute    provide    that   after-ac-  therein  can  be  taken  and  sold  on  e.xecu- 

qaired   property  of  a  married  woman  tion.     lb. 

[constitute  her  separate  estate,  not         5  Almond   ?•.  Bonnell,  76  111.   536; 

liable   for  the  husband's  debts  nor  BUb-  Stilphen  v.  Stilphen,  65  N.  II.  126. 
]  set  to  )\\h  control.     Put  neither  State 

186 


CFIAP.  IX.]  WIFE'S    SEPARATE    PROPERTY.  §   114 

in  possession  or  reduced  to  possession  l>y  the  husband  is  his.1 
And,  to  go  still  further,  in  her  choses  in  action,  or  unreduced 
personalty  which  he  is  already  at  liberty  to  reduce,  there  is  a 
valuable  existing  interest  capable  of  assignment  and  transfer, 
—  a  vested  right  in  the  husband  which  a  subsequent  statute  or 
State  constitutional  provision  cannot  deprive  him  of,  according 
to  the  better  opinion.2 

The  interest  of  a  husband  in  remainder  in  property  already 
bequeathed  to  his  wife  on  the  contingency  of  surviving  a  life 
tenant  is  held  to  be  a  vested  right  in  such  a  sense  that  it  can- 
not be  taken  away  by  a  married  woman's  act  passed  before  the 
contingency  happens.3  And,  in  general,  an  interest  vested  in 
the  husband,  though  in  a  certain  sense  contingent,  which  is  not 
a  mere  expectancy  or  bare  possibility,  like  that  of  an  heir  from 
his  living  ancestor  who  may  yet  disinherit  him  by  will,  but  is 
an  interest  already  created  and  existing,  which  is  descendible, 
transmissible,  and  capable  of  transfer,  is  not  to  be  taken  away 
by  subsequent  legislation  in  the  wife's  favor.4  In  like  manner 
the  husband's  vested  life  estate  by  way  of  curtesy  initiate  in 
his  wife's  lands  cannot  be  taken  away  by  legislative  enactment, 
any  more  than  the  wife's  inchoate  right  of  dower  in  her  hus- 
band's lands.6  Nor  can  any  interest  which  a  husband,  before 
the  passage  of   the  act,  has    in  his  wife's  real  estate  be  thus 

1  Buchanan  v.  Lee,  69  Ind.  117.  Cockrill,  53  Fed.  Rep.  872.     Cf.  as  to 

-  See   Dunn  v.   Sargent,  101    Mass.  giving  hack  to  the  wife,  &c,  after  re- 

339;    Westervelt  r    Gregg,    12   N.    Y.  during,    119    Mo.    615;    29    Neb.    243; 

202;    Ryder   v.   Hulse,   24  N.   Y.  372;  c.  14,  post 

Stearns    v.    Weathers,    30    Ala.    712;  3  Dunn  r.  Sargent,  101  Mass.  336. 

Kirksey  v.  Friend,  48  Ala.  276.     Such  4  Gray,  J.,  in   Dunn  v.  Sargent,  101 

is  the  rule  with  reference  to  a  legacy  Mass  336  ;  Shaw,  C.  J.,  in  Gardner  v. 

bequeathed  to  a  wife,  and  taking  effect  Hooper,  3  Gray,  398. 
before  the  passage  of  an  act  vesting  all  6  Rose    v.    Sanderson,    38    111.    247  ; 

such  property  in  the  married  woman:  Dayton  v.  Dusenbury,  25  X.  J.  Kq.  110; 

Norris  v.  Beyea,  13  N.  Y.  273,  288  ;  or  McXeer  v.  McXeer,  142  111.  388 ;  144111. 

her  distributive  share,  accruing  previ-  274.      Cf.  Allen  v.   Hanks,   136  U.  S. 

onsly,  in  an  estate:  lb.;  Kidd   v.  Mon-  300,  where  the  precise  point  is  not  con- 

tague,  19  Ala.  619;  Sperry  v.  Haslam,  sidered.     Contra,  Alexander  v.  Alexan- 

57  Ga.  412;    or  her  stock,  mortgages,  der,  85  Va.  390.     Rents  of  the  wife's 

and     incorporeal     property    generally,  land,  too,  accruing  before  her  death  and 

See  Schouler,  Hus.  &  Wife,  §211   n.,  prior  to  the  new  constitutional  provisi<  m 

commenting  upon  Clark  v.  McCreary,  as  to  married  women's  rights,  go  with 

12  S.  &  M.  347,  contra.     But  see,  contra,  the  curtesy,  and  not  to  the  wife's  heirs. 

Keagy  v.  Trout,  85  Va.  390 ;  Percy  v.  Matthews  v.  Copeland,  79  X.  C.  493. 

187 


§  114  THE   DOMESTIC   RELATIONS.  [PART   II. 

devested.1  On  the  other  hand,  where  the  husband's  liability  for 
his  wife's  antenuptial  debts  was  fixed  by  marriage,  a  statute 
removing  that  liability  is  not  presumed  to  be  retroactive.2 

In  some  States  all  these  constitutional  perplexities  are  ob- 
viated by  legislation  which  embraces  simply  such  property  as 
may  be  held  or  acquired  by  women  marrying  after  the  passage 
of  the  act.3  But  the  married  women's  acts  or  constitutional 
amendments  usually  operate  upon  parties  occupying  already  the 
conjugal  relation,  as  the  statute  language  shows,  and  upon  those 
consequently  who  as  a  fact  are  likely  each  to  have  married  with 
some  reference  to  the  pecuniary  expectations  of  the  other.  To 
protect  a  husband's  interests  to  any  such  extent,  however,  on 
any  constitutional  suggestion  on  his  behalf,  the  courts  appear 
uniformly  to  decline ;  for,  as  it  has  been  observed,  the  mar- 
riage contract  does  not  imply  that  the  husband  shall  have  the 
same  interest  in  the  future  acquisitions  of  the  wife  that  the  law 
gives  him  in  the  property  she  possesses  at  the  time  of  the 
marriage,  but  rather  that  she  shall  have  whatever  interest  the 
legislature,  before  she  is  invested  with  them,  may  think  proper 
to  prescribe.4  In  other  words,  while  the  husband's  vested  rights 
arising  under  a  marriage  cannot  be  constitutionally  disturbed  by 
an  alteration  of  the  law,  his  mere  expectancy,  or  the  possibility 
of  some  future  acquisition  by  right  of  marriage,  is  subject  to  any 
change  which  the  legislature  may  choose  to  make  prior  to  the 
vesting  of  a  right  in  the  husband.5  A  conditional  liability  of 
the  wife's  property  for  her  husband's  debts  may  thus  be  re- 
pealed.6 And  whatever  a  married  woman  may  have  acquired 
subsequently  to  the  passage  of  an  appropriate  act  by  gift,  devise, 
bequest,  and  so  on,  becomes  her  statutory  separate  estate,  and 

1  Burson's  Appeal,  22  Penn.  St   164;         8  See  Maclay  v.  Love,  25  Cal.  367. 

Prall  i .  Smith,  31  N.  J.  L.  244  ;  Wythe  Cf  Ragh  v.  Ottenheimer,  6  Oreg.  231. 
>-.  Smith,   t   Sawyer,  17.    See  87  X.  C.         4  Sleight  v.   Read,   is    Barh.    159; 

329;  17  S.  C.  313;  12  Lea.  490.  Southard  v.  Plummer,  36  Me.  64. 

The   increase  <>f    domestic  animals         B  Cooley,  Const.    Limitations,  360- 

purchased  by  the  husband  before   the  .'sr>2 ;    Holliday  v.  McMillan,  79  N.  C. 

"•   of   the   married    woman's  act  315;  Gray,  J.,  in  Dunn  v.  Sargent,  101 

belongs    to   him  ami   7>ot  to   his   wife.  Mass.  :w> ;  Hill  v.  Chambers,  :w  Mich. 

Hazel     kern  Goodfellow,  64  111.  2'is.  422.    So  as  to  future  crops.     Xiles  v. 

-'  Taylor  v,  Ronntree,  L5  Lea,  725;  Hall,  64  Vt.  453. 
D         i  r  <■  Jordan,  27  Minn.  295.  6  Fairchild  v.  Knight,  18  Fla.  770. 

188 


CHAP.  IX. J     WIFE'S  SEPARATE  PROPERTY.  §  115 

all  parties  concerned  must  govern  themselves  accordingly.1  But 
the  wife's  death  intestate  or  without  depriving  the  husband  of 
his  common-law  rights  in  her  personalty  by  any  will  which  the 
law  sanctions  on  her  part,  leaves  his  inheritance  right  as  sur- 
vivor unimpaired,  so  far  as  no  express  trust  to  her  separate  use 
may  have  excluded  him.3 

A  corresponding  rule  of  constitutional  limitations  applies  to 
the  rights  and  liabilities  of  the  wife  under  these  acts,  as  to  her 
title  by  gift  or  purchase,  and  as  to  her  dominion  over  her 
property  generally,3  of  which  we  are  to  speak  hereafter. 

§  115.  Married  Women's  Acts  as  to  Antenuptial  Property 
and  Acquisitions  from  Third  Persons.  —  Our  married  women's 
codes  fairly  correspond  in  permitting  the  wife  (subject  to  con- 
stitutional limitations)  to  hold,  in  her  sole  and  separate  right, 
all  the  property,  real  or  personal,  which  she  had  at  the  time  of 
marriage,  or  has  acquired  thereafter  from  any  person  other  than 
her  husband,  by  gift,  grant,  devise,  or  bequest.  Eeal  estate 
thus  held  or  acquired  is  regarded,  not  as  land  of  which  the  hus- 
band enjoys  the  beneficial  use,  but  as  her  separate  land. 
Leasehold  property  may  be  thus  held  and  enjoyed  by  the  wife.4 
Her  personal  property,  whether  in  possession  or  lying  in  action,  is 
her  own,  provided  the  statute  description  be  fulfilled.  A  mar- 
ried woman,  transferring  stock  after  marriage  from  her  maiden 
to  her  married  name,  may  retain  it  as  her  separate  property.5 
Notes,  bonds,  or  other  evidences  of  debt,  and  incorporeal  prop- 
erty,6 pass  to  her  as  well  as  corporeal  property  ;  animate  as  well 

1  Cherokee  Lodge  v.  White,  63  Ga.  Ind.  4S2  But  as  to  a  later  act  enlarg- 
742 ;  Nevius  v.  Gourley,  95  111.  206.  ing  the  rights  and  legal   capacities  of 

2  Ken  von  v.  Saunders  (1894),  R,  I.  the  married  woman,  and  repealing  by 
An  act  giving  the  wife  power  to  make  a  implication  former  reservations  in  her 
will  should  not  be  strained.  132  Penn.  favor,  see  104  111.  537.  A  State  consti- 
St.  5.33.  tution  may  conflict  with  the  local  statute 

3  Bryant  v.  Merrill,  55  Me.  515;  and  modify  the  right.  38  S.  C  121. 
Clark  v.  Clark,  20  Ohio  St.  128.  Lee  4  Vandevoort  v.  Gould,  36  N.  Y. 
v.  Lanahan,  58  Me.  478;  Kohn  v.  Colli-  639  ;  Prevot  v.  Lawrence,  51  N.  Y.  219. 
son  (1894),  Del.  See,  further,  Schouler,  As  to  land  damages  and  equity  to  land, 
I  Ins.  &  Wife,  §  213.  Where  a  later  act  see  State  v.  Hulick,  33  N.  J.  307  ;  Sharp- 
limits  the  wife's  former  power  to  incum-  less  v.  West  Chester,  1  Grant,  257 ; 
ber  her  separate  property,  it  will  not  be  Prout  v.  Hoge,  57  Ala.  28. 

taken  as  repealing  the   former   power  5  Mason  v.  Fuller,  36  Conn.  160. 

beyond   what   is   inconsistent   with  the  6  Selden  v.  Bank,  69  Penn.  St.  424. 

new  provision.     Eraser  v.   Clifford,  94 

189 


§  116  THE    DOMESTIC    RELATIONS.  [PART    II. 

as  inanimate  property ; *  money,  which  of  course  is  personal 
property.2 

§  116.  Change  of  Investment ;  Increase  and  Profits  ;  Purchase, 
&c.  —  Property  acquired  by  exchange  for  the  wife's  statutory 
property  is  presumably  her  separate  property  likewise,  as  where 
one  horse  is  exchanged  for  another.3  And  since  the  income  of 
her  separate  fund  is  hers,  property  purchased  with  her  savings 
from  interest  arising  out  of  her  separate  funds  belongs  to  her  as 
her  separate  property.4  Upon  a  sale  and  exchange  of  the  wife's 
separate,  as  contrasted  with  her  general,  lands,  courts  are  sedulous 
to  maintain  that  the  proceeds  belong  to  the  wife.5  And  where 
her  realty,  as  in  partition  proceedings,  is  converted  into  money, 
the  proceeds,  so  long  as  they  may  possibly  be  traced,  stand  in 
lieu  of  the  real  estate  for  her  benefit.6  Equity  comes  in  aid  of 
these  principles,  where  statutory  remedies  are  inadequate,  and 
indeed  of  numerous  kindred  rules  under  the  married  women's 
acts. 

The  natural  increase  and  profits  of  the  wife's  statutory  separ- 
ate property,  including  the  progeny  of  her  separate  domestic 
animals,  and  the  rents  of  her  separate  lands  or  the  crops,  are 
usually  to  be  construed  hers  and  at  her  disposal  during  mar- 
riage, as  well  as  the  property  which  produced  the  increase  and 
profits.7  If  it  were  rightly  held  otherwise,  this  would  be  on 
some  construction  that  the  wife  had,  by  her  acts  and  conduct, 
acquiesced  in  her  husband's  assumption  of  the  ownership.8  In 
short,  all  the  product  and  increase  of  the  original  property  will 
become  the  wife's  as  long  as  she  can  follow  and  identify  it,9 
though  expenditure  of  income  for  authorized  family  purposes 
may  well  be  presumed.10     Rents,  profits,  or  income  obtained  from 

i  Gana  v.  Williams,  62  Ala.  41.  ins  v.  Colby,  43  N.  H.   159;    Stout  v. 

-  Mitchell  v.  Mitchell,  85  Miss.  114.  Perry,  70  Ind.  501.     But  as  to  products 

a  Pike  v.  Baker,  53  111    163.  of  the  land  occupied  by  the  family,  cf. 

4  Merritt  v.  Lyon,  3  Barb.  110;  74  Moreland  v.  Myall,  14  Bush,  474,  Hill 

Ala    •;  l'..    175.  v.  Chambers,  30  Mich.  422. 

•  Brevard  <•.  Jones,  r>0  Ala.  221.  8  But  see  peculiar  statute  construed 

6  Nissley  v.  Heisey,  78  Penn.  St.  in  Chambers  v.  Richardson,  57  Ala  85. 
418;  Rice  v.  Hoffman, 35  Md.  844.  9  Holcomb    v.    Meadville    Savings 

>    Williams    v.    McGrade,    L3    Minn.  Bank,  92   Penn.  St.  338. 
40;  Hanson    v.    Millett,   55   Me.    184;        l0  See  Chambers  v.  Richardson,  57 

Gam  -.  Williams,  62  Ala.  41;  Hutch-  Ala.  85. 
190 


CHAP.  IX.]  WIFE'S    SEPARATE    PROPERTY.  §  117 

a  wife's  statutory  estate  for  which  a  husband  is  under  no  obli- 
gation to  account,  under  local  law,  readily  becomes  his 
property.1 

Whatever  comes  to  the  wife  by  her  purchase  or  as  the  fruit 
of  her  own  labor  is  now  secured  to  the  wife  by  many  codes,  as 
well  as  her  gifts  or  inheritance  from  others  during  the  marriage 
state.2  And  the  fact  that  the  husband  negotiates  a  purchase  on 
his  wife's  behalf  gives  his  creditors  no  claim  to  the  property.3 
Such  questions  of  the  wife's  title  are  questions  of  fact.4  The 
wife's  earnings  may  now  be  claimed  by  herself  under  most 
codes,  and  they  constitute  her  "  property."  5 

§  117.  Methods  of  Transfer  from  Third  Parties  under  these 
Acts. — Where  the  property  is  such  as  can  pass  without  a 
written  transfer  or  conveyance,  a  gift  or  sale  to  the  wife,  of 
statutory  separate  property,  may  be  by  parol ; 6  although,  of 
course,  all  proof  must  consist  with  the  idea  that  delivery  is  for 
her  sole  and  separate  use,  and  not  so  as  to  admit  the  rights  of 
her  husband.7  Where  a  conveyance  or  other  written  instru- 
ment is  needful,  the  expression  must  likewise  conform  to  the  leg- 
islative intent ;  and  even  where  the  language  of  the  statute  is 
broad  enough  to  dispense  with  such  phrases  as  "  sole  and 
separate  use,"  the  wife's  only  safety  consists  in  having  her  name 
used  as  that  of  grantee  or  transferee,  instead  of  the  husband's.8 
Where  it  comes  to  an  expression  of  separate  use,  under  some 
instrument  made  on  the  wife's  behalf,  an  equitable  separate  use, 
rather  than  a  statutory  separate  use,  may  be  said  to  have  been 
created ;  though  authorities  style  it  under  some  local  acts  as  a 
statutory  separate  estate.9 

1  See  Early  v.  Owens,  68  Ala.  171.  8  Pepper  v.  Lee,  53  Ala.  33  ;  Slaugh- 

2  Stimson,  American  Stat.  Law,  ter  v.  Glenn,  98  U.  S.  242  ;  Robinson 
§  6422.  But  the  wife  ought  to  be  able  v.  O'Xeal,  56  Ala.  541  ;  Campbell  v. 
to  establish,  against  a  husband's  credi-  Galbreath,  12  Bush,  459.  Under  the 
tors  especially,  that  the  purchase  was  more  sweeping  local  statutes  a  convey- 
made  with  her  own  means.  23  W.  Va.  ance  to  a  married  woman  need  not  state 
499.  that  she  is  to  hold  it  to  her  separate 

3  Rockford    Bank    v.    Gaylord,    66  use.     Sims  v.  Rickets,  35  Ind.  181. 
Iowa,  582.  9  A  conveyance  of  lands  in  Alabama 

4  111  Penn.  St.  124.  to  a  married  woman  "to  have  and  to 
6  Cf.  §§  81,  162 ;  52  Conn.  327.  hold  to  the  sole  and  proper  use,  benefit 

6  Tinsley  v.  Roll.  2  Met.  (Ky.)  509.       and  behoof  of  her,  her  heirs  and  assigns 

7  Walton  v.  Broaddus,  6  Bush,  328.       forever,"  vests  in  her,  under  the  laws  of 

191 


§  118  THE   DOMESTIC    RELATIONS.  [PART   II. 

§  118.  Acquisitions  from  Husband  not  so  much  Favored. — 
But  as  concerns  acquisitions  of  the  wife  from  her  husband,  the 
married  women's  acts  by  no  means  concur  in  making  this  her 
statutory  separate  estate,  as  they  do  where  the  acquisition  is 
derived  from  some  third  party.  Some  local  legislatures,  to  be 
sure,  have  gone  as  far  as  this,  but  not  perhaps  the  greater  num- 
ber.1 Hence  we  we  may  defer  the  discussion  of  earnings,  pin- 
money,  postnuptial  settlements,  and  gifts  from  husband  to  wife 
until  later  chapters  of  this  treatise  are  reached,  when  the  equi- 
table doctrine  will  be  considered  in  the  same  connection.2  A 
title  to  separate  statutory  property  cannot  be  vested  in  the  wife 
on  her  husband's  credit,  where  the  statute  only  recognizes  her 
right  to  acquire  from  third  persons,  any  more  than  it  could  by 
his  money.3  And  such  is  the  temptation  to  making  colorable 
transfers  to  one's  wife  in  fraud  of  creditors,  that  in  controversies 
over  title,  where  the  legislation  discourages  acquisitions  from 
the  husband,  the  wife,  as  against  the  husband  and  his  creditors 
and  representatives,  has  been  held  quite  strictly  to  her  proofs 
of  acquisition  from  a  person  other  than  her  husband,4  unless,  at 
all  events,  there  are  writings  which  run  so  as  suitably  to  give 
her  the  legal  title  instead.5  Where  a  husband's  creditors  have 
such  prior  notice  that  they  are  not  prejudiced,  a  wife's  claim  of 
ownership  stands  on  a  stronger  footing;6  for  it  is  the  bona  fide 
third  persons  who  are  led  to  trust  the  husband  who  are  chiefly 
protected. 

Where  a  husband  purchases  land  or  personalty  with  his  own 
money,  and  conveys  or  transfers  it  to  his  wife,  through  a  trustee 
or  otherwise,  the  question  becomes  ordinarily  one  of  postnuptial 
settlement  or  gift,  with  equitable  rules  such  as  we  shall  consider 

that  State,  a  statutory  separate  estate.  2  See  cs.  12,   14.     A  wife  may  now 

Lippincott    v.    Mitchell,   94    U.  S.  707.  acquire  her  husband's  note  from  a  third 

And  Bee  Swain  v.  Duane,  48  Cal.  358  ;  person  and  enforce  it.     14  R.  I.  1. 

Evans  v.  Neahs,  69  Ind.  148.     Married         ;i  Hopkins  v.  Carey,  23   Miss.   54; 

women's  act  held  to  render  the  henefi-  Worth  v.  York.  13  Tred.  206. 

ciary  under  ;i  prior  marriage  settlement         4  See  Reeves  v.  Webster,  71  111.  307; 

independent  of  her  trustee  as  to  Buch  Johnson  v.  Johnson,  72  111.  489;  Gor- 

separate  estate.     McLaughlin  v.  11am,  man  v.  Wood,  68  Ga.  524. 

hi  ii:,   786,  ,r'  Lyon    v.  Green   Hay  R.,  42  Wis. 

1  See   Towle    '•    Towle,    114    Mass.  548. 
167  j  Jenkins  v.  Minn.  :i7  Ind.  849.  6  See  Jones  v.  Brandt,  59  Iowa,  332. 

192 


CHAP.  IX.]  WIFE'S   SEPARATE   PROPERTY.  §  118 

hereafter ;  though  sometimes  the  married  women's  act  is  broad 
enough  in  scope  to  confer  the  right  of  separate  property  acqui- 
sition, as  such,  from  a  husband,  as  well  as  from  third  persons. 
If,  on  either  theory,  the  title  vests  in  the  wife,  as  of  her  separate 
right,  the  proceeds  thereof,  or  the  specific  re-investment,  is  the 
wife's  also.  Where  the  husband  appropriates  such  proceeds  or 
takes  other  property  in  his  own  name,  equity  and  modern  stat- 
utes between  them  may  preserve  the  wife's  rights ;  she  may,  in 
the  usual  manner,  follow  her  title  into  the  new  property,  or  else 
regard  her  trustee  as  remiss  in  duty  and  indebted  to  her. 

Again,  the  wife  is  permitted  to  bestow  her  statutory  separate 
property  upon  her  husband,  or  waive  her  statutory  rights  to  a 
considerable  extent.  Thus,  it  is  held  that  money  used  by  the 
husband  with  the  wife's  knowledge  and  consent,  in  payment  of 
ordinary  household  expenses,  and  without  any  agreement  for 
repayment  to  her  on  his  part,  cannot  be  recovered  from  his 
estate  afterwards.1  And  further  than  this,  where  she  long  per- 
mits him  to  invest  her  surplus  rents  and  income  for  other  than 
her  sole  benefit  and  with  no  apparent  intention  of  charging  him, 
she  cannot  follow  such  rents  or  income  into  the  investment 
afterwards.2  A  gift  by  her  of  the  income  might  thus  be  implied 
without  a  gift  of  the  capital.3  The  husband  may  reduce  to 
possession  his  wife's  outstanding  personals  in  action  ;  but  out  of 
regard  to  her  statutory  rights,  the  doctrine  now  becomes  of  some- 
what novel  application,  and  evidence  of  the  wife's  consent  is 
properly  required  in  many  States  before  the  husband's  acts  of 
appropriation  shall  be  considered  complete.  For  while  she  may 
bestow  her  goods  and  chattels  upon  him,  under  suitable  circum- 
stances, he  can  no  longer  go  to  work,  as  he  could  at  the  common 
law,  and  make  his  title  complete  without  reference  to  her  wishes.4 
Nor  has  the  debtor  or  custodian  of  the  incorporeal  property,  or 
the  executor  or  administrator  who  settles  the  estate  in  which  the 
married  woman  may  have  a  legacy  or  distributive  share  accru- 

1  Cartwright  v.  Cartwright,  53  Iowa,  4  Vreeland  v.  Vreeland,  1  C.  E. 
57.  Green,   512;    King    v.    Gottschalk,    21 

2  Bristor  v.  Bristor,  101  Ind.  47.  Iowa,  512;  Haswell  v.   Hill,  47  K  H. 

3  Haver's  Estate,  140  Penn.  St.  420;  407  ;  41  Ohio  St.  29S;  Archer  v.  Guill, 
§116.  67  Ga.  195. 

13  103 


§  119  THE   DOMESTIC   RELATIONS.  [PART   II. 

ing  to  her,  the  right  to  recognize  the  husband  as  entitled  to  her 
exclusion,  or  to  pay  over  to  him  on  his  sole  and  unauthorized 
receipt.1 

§  119.  Husband's  Control ;  Mixing  Wife's  Property  or  Keeping 
it  Distinct.  —  The  greatest  source  of  perplexity,  in  truth,  in  these 
married  women's  acts,  arises  out  of  the  effort  at  elimination  of 
a  husband's  control  in  his  wife's  statutory  property ;  for  here 
the  safeguards  usual  in  equitable  trusts  are  wanting.  Nor  are 
States  agreed  in  the  course  to  pursue,  since  the  policy  in  one  is 
to  emancipate  the  wife  from  property  restraints,  while  another 
grudges  the  change  as  tending  to  strip  the  husband  of  his  mat- 
rimonial rights.  A  married  woman,  in  order  to  preserve  her 
separate  property,  should  keep  it  distinct  from  that  of  her  hus- 
band ;  and  especially  does  the  rule  hold  true  in  States  where 
presumptions  are  against  her  exclusive  right.  Thus  it  is  held 
that  if  a  married  woman  willingly  allows  what  she  might  have 
retained  as  her  separate  property  to  be  so  mixed  into  a  common 
mass  with  that  of  the  husband  as  to  be  undistinguishable,  or 
acquiesces  in  leaving  it  so,  it  must,  as  to  her  husband's  creditors, 
be  treated  as  relinquished  to  him.2  So,  too,  land  or  other  prop- 
erty bought  by  the  husband  with  his  wife's  money,  but  in  his 
own  name,  and  without  any  agreement  that  the  purchase  shall 
be  to  her  separate  use,  or  the  title  taken  in  her  name,  will  not, 
as  a  rule,  as  presumptions  have  ruled  hitherto,  be  treated  as  her 
separate  property.3  If  certain  property  be  purchased  in  part 
from  her  own  funds,  and  in  part  from  her  husband's,  whatever 
the  form  of  the  investment,  her  title  extends  only  to  the  amount 
of  her  investment.4     But  an  equitable  principle  is   sometimes 

1  Aliter,  if  the  husband's  receipt  was  v.  Scruggs,  94  U.  S.  22;  Sayre  v.  Weil, 

authorized  by  the  wife.     Hobensaek  v.  94  Ala.  4f>6. 

Hallman,  17  Penn.  St.   L54.     Some  of  »  Kidwell  v.  Kirkpatrick,  70  Mo.  214. 

the   local  statutes  are  held  not   to  re-  4  Hopkins   v.   Carey,   23    Miss.   54; 

Btrain  the  husband  from  collecting  and  Worth  v.  York,  13  Ired.  206;    Haines 

reducing  to  possession  his  wife's  chosen  v.  Haines,  54  HI.  74  ;  Hardin  v.  Darwin, 

inaction,     'lark   v.   Bank  of  Missouri,  66  Ala.  55.    Under  Maine  statutes,  prop- 

47  Mo    17.  erty  conveyed  to  a  married  woman,  hut 

-  Glo  ei  m     Alcott,    11    Mich.  470;  wholly  or  partly  paid  for  by  her  hus- 

v     Reddy,    45    Penn.   St.   406;  band,  may  be  reached  by  the  husband's 

Kelly  v    Drew,  i_'   Allen,   107;  Cham-  creditors  to  the  extent  of  his  interest. 

ben  v   Richardson,  57  Ala.  85;  Humes  Call  v.  Perkins,  65  Me.  439.    And  see 

Bowen  v.  McKean,  *2  Mo.  594. 

194 


CHAP.  IX.]  WIFE'S    SEPARATE    PROPERTY.  §  119 

applied,  where  the  funds  thus  mingled  cannot  be  identified,  to 
allow  the  wife  to  charge  the  new  investment  to  the  extent  of 
her  money  which  is  traceable  into  it.1 

On  the  other  hand,  where  the  husband  has  kept  his  wife's 
funds  distinct  from  his,  though  changing  investments  from 
time  to  time,  and  preserved  the  ear-marks,  so  to  speak,  her 
right  to  claim  the  property  from  his  estate,  upon  surviving  him, 
has  been  and  is  likely  to  be  strongly  asserted.2 

So  discordant  is  our  married  women's  legislation,  however, 
that  in  New  York,  where  presumptions  lean  strongly  to  the 
wife's  side,  it  is  held  that  if  household  furniture  belonging  to  a 
wife,  and  acquired  from  her  father,  is,  with  her  consent,  taken 
to  the  common  dwelling,  mingled  with  the  husband's  furniture, 
and  used  therewith  for  the  common  household  purposes,  it  does 
not  thereby  become  her  husband's  propert}',  but  the  title  re- 
mains in  her.3  This  doctrine,  however,  is  applied  as  between 
the  wife  or  her  assignee,  and  the  husband  himself;4  and  as  to 
bona  fide  third  parties  for  value  without  notice,  the  assertion  of 
a  wife's  title  as  against  those  who  have  given  credit  to  a  hus- 
band in  possession  requires  the  nicest  discrimination  on  the 
part  of  the  court.  Property  bought  by  a  husband  with  money 
belonging  to  his  wife  will  in  general  be  presumed  to  be  his  own 
until  the  contrary  is  shown  ;5  and  even  property  bought  by  the 

1  Springfield  Inst.;;.  Copeland,  160  2  Fowler  v.  Rice,  31  Ind.  358  ;  Rich- 
Mass.  380.  The  inclination  of  the  ardson  v.  Merrill,  32  Vt.  27 ;  McCowan 
latest  cases  is  to  protect  the  wife's  por-  v.  Donaldson,  128  Mass.  169  ;  Schouler, 
tion  of  the  investment  against  the  hus-  Hus.  &  Wife,  §  219,  and  numerous  cases 
hand  or  his  creditors  in  cases  of  mixture  cited. 

unless,  in  the  latter  instance,  she  luis  3  Fitch  v.  Rathbun,  61  N.  Y.  579. 

actively  misled  others.     158  Perm.  St.  4  lb.      Under  a  Rhode  Island  stat- 

30 ;  Young  !'.  Swift,  153  Penn.  St.  352  ;  ute  "  household  furniture  "  of  the  wife, 

Bloomingdale  v.  Chittenden,  75  Mich,  such   as    a    sewing-machine    or    piano 

305;  Schroeder  v.  Loeher,  75  Md.  195;  cannot  be  transferred  by  the  husband 

Fizette  v.  Fizette,  146  111.  328;  Scratch-  except  by  a  writing  in  which  the  wife 

field  i'.  Sauter,  119  Mo.  615;  116  Mo.  joins      13  R.  I  25.     Furniture  used  in 

169.     A  gift  to  husband  of  wife's  capi-  furnishing  a  hotel  for  business  is  not 

tal  is  thus  less  readily  inferred  than  a  to  be   readily  considered  the   separate 

trust.      Hammond   v.   Bledsoe    (1894),  property  of  the  wife,  as  against  a  hus- 

Ind.;  146  111,  635.     Where  land  is  con-  band's  creditors.     18  Fla.  707.     See  65 

veyed  to  husband  and  wife  jointly,  each  Iowa,  178.     A  wife  gains  no  title  ad- 

is  presumed  to  have  paid  one-half  the  verse  to  her  husband  in  property  jointly 

purchase-money.     86    Mich.    297;    Al-  possessed.     89  Ala.  283,  371. 

brecht  Re,  136  N.  Y.  91.     See  §  193.  6  Moye  v.  Waters,  51   Ga    13.     But 

195 


§  120  THE   DOMESTIC    RELATIONS.  [PART    II. 

husband  with  money  from  the  wife,  which  is  placed  in  his 
hands  for  such  investment  in  his  name  and  for  his  benefit,  is 
liable  to  seizure  for  his  debts,  notwithstanding  she  borrowed  the 
money.1  A  wife  may  have  an  equitable  right  to  pursue  her 
funds  invested  by  her  husband,  while,  until  this  right  is  as- 
serted, the  husband  retains  a  legal  title  of  which  a  bona  fide 
transferee  for  value  may  perhaps  avail  himself  by  way  of  a 
countervailing  equity.2 

§  120.  Husband  as  Wife's  Trustee  in  this  Connection.  —  The 
husband,  while  the  marriage  relation  lasts,  may  hence  become 
bound  as  trustee  of  his  wife's  statutory  separate  estate,  real  or 
personal,  not  only  by  express  appointment,  but  through  impli- 
cation, as  under  the  equity  rule.3  In  certain  States,  such  as 
Connecticut  and  Alabama,  the  husband  is  specially  designated 
by  statute  as  his  wife's  trustee,4  —  a  peculiarity  of  legislation 
which  is  attended  with  peculiar  consequences  as  to  the  legal 
title  of  such  property.  And  since  the  opportunities  afforded 
him  for  mixing  up  her  property  with  his  are  very  great,  in  the 
present  raw  age  of  our  married  women's  legislation,  we  often 
find  her,  upon  surviving  him,  a  general  creditor  against  his 
estate,  or  the  claimaut  of  a  trust  fund  which  cannot  easily  be 
identified.5      Unlike  the  wife's   separate  estate   in   equity,  the 

see    next   c.   as  to    his   agency  ;    also  4  Sherwood  v.  Sherwood,  32  Conn. 

§  120  a.  1;  Marsh  v.   Marsh,  43  Ala.  677;    73 

1  Nelson  v.  Smith,  64  111.  394.  Ala.  580.     The  personal  property  of  a 

2  See  Holly  o.  Flournoy,  54  Ala.  99.  married  woman,  which  is  by  the  statute 
A  third  party  aetiug  in  bad  faith  to-  vested  in  the  husband  as  her  trustee- 
wards  the  wife  cannot  claim  as  against  is  not  in  legal  strictness  her  sole  and 
her.  75  Midi.  305.  Nor  one  who  did  separate  estate,  unless  the  husband 
not  iu;ike  prudent  inquiry.  45  Minn,  transfers  it  to  the  wife,  or  relinquishes 
294.  And  see  Brick  v.  Campbell,  122  his  right  with  regard  to  it.  Williams 
N,  Y.  337.  v.  King,  43  Conn.  569.     See  60  Conn. 

Bnt  the  wife  is  estopped  by  her  own  478. 

as  where  she  lets   her   husband         The  husband  may  sue,  "as  trustee 

take    her  money   and  delays  long  ask-  of"  his  wife,  to  recover  rents,  income, 

ing  an  account.     135  111.482;  136  Penn.  and  profits  of  his  wife's  statutory  sep- 

St    588;  77   Wis.   557;  Smith  v.  Tur-  arate  estate.     Bentley  v.  Simmons,  51 

ley,  32  W.  Va.  14.  Ala.  165. 

Walter    v.    Walter.   48    Mo.    140;  5  Martin    v.    Curd,    1    Bush,    327 

Hall /■.  Creswell,  46  Ala.  460 ;  Wood  v.  Hanse  v.  Gilger,  52   Penn.  St.    412; 

W I    83   N.  V.  575  ;   Patten  n.  ratten,  Fowler  v.  Rice,  31  Ind.  258. 

75  111.  446;  Hammons  v.  Renfrew,  84 
32;  Camp  v.  Smith,  98  Ind.  409. 

196 


CHAP.  IX.'J     WIFE'S  SEPARATE  PROPERTY.         §  120  a 

separate  property  of  a  married  woman  under  American  statutes 
seems  sometimes  to  retain  its  qualities  after  her  death,  so  that 
her  administrator  often  claims  it  against  her  surviving  hus- 
band.1 It  would  appear  that  in  general  the  agency  of  the 
husband  in  selling,  exchanging,  or  managing  his  wife's  separate 
statutory  property  may  be  previously  conferred,  or  ratified  after- 
wards by  the  wife.2 

§  120  a.  Presumptions  as  to  Separate  Property  under  these 
Acts.  —  We  must  here  bear  in  mind  that  the  married  women's 
acts  have  reference,  not  to  the  wife's  property  in  the  mass,  but 
to  property  suitably  acquired  by  her  in  certain  instances  by 
way  of  exception  to  the  old  rule  of  coverture.  Broad,  there- 
fore, as  they  may  often  appear,  these  statutes  are  considerably 
restrained  by  judicial  construction  and  the  application  of  pre- 
sumptions. In  Massachusetts,  Maine,  California,  Wisconsin, 
Illinois,  and  other  States,  the  presumption  is  still,  or  was  lately, 
in  absence  of  suitable  words  or  circumstances  manifesting  an 
intent  on  the  part  of  those  interested  to  claim  the  benefits  of 
the  statute,  that  a  married  woman's  property  belongs  to  her 
husband  as  at  the  common  law ;  so  that  his  possession  of  the 
property,  undisputed  and  unexplained,  or  even  a  visible  pos- 
session thereof  in  connection  with  his  wife,  would  give  him 
the  marital  dominion.3  In  Pennsylvania  the  courts  were  at 
first  disposed  to  rule  otherwise,  but  they,  too,  presently  settled 
upon   the  same  presumption.4     On   the  other  hand,  the  New 

1  Leland  v.  Whitaker,  23  Mich.  324.     snmptively  his.     Moreland  t*.  Myall,  14 

2  Lichtenberger  v.  Graham,  50  Iud.  Bush,  474;  152  Mass.  203.  But  cf. 
288.     See  next  c.     The  wife  may  have     Hill  v.  Chambers,  30  Mich.  422. 

her  separate  property  placed  in  a  trus-  4  Cf.  Gamber  v.  Gamber,  18  Penn. 
tee's  control,  so  as  to  exclude  her  hus-  St.  363 ;  Winter  v.  Walter,  37  Penn. 
band.  Kirkpatrick  v.  Clark,  132  111.  342.  St.  157  ;  Bear's  Administrator  v.  Bear, 
8  Eldridge  v.  Preble,  34  Me.  148 ;  33  Penn.  St.  525  ;  Gault  v.  Saffin,  44 
Smith  v.  Henry,  35  Miss.  369  ;  Alver-  Penn.  St.  307 ;  with  Goodyear  v.  Rum- 
son  v.  Jones,  10  Cal.  9  ;  Clark  v.  Patter-  baugh,  13  Penn.  St.  480.  And  see 
son,  158  Mass.  388;  Farrell  v.  Patterson,  Curry  v.  Bott,  53  Penn.  St  400.  But 
43  111  52;  71  Illinois,  307;  Stanton  v.  a  change  of  statute  in  1887  changed 
Kirsch,  6  Wis.  338;  Smith  v.  Hewett,  once  more  the  rule  154  Penn.  St.  258. 
13  Iowa,  94.  Contra,  Johnson  v.  Run-  Under  the  law  of  Tennessee,  direct  gifts 
yan,21  Ind  115;  Stewart  v.  Ball,  33  Mo.  to  the  wife  enure  to  the  husband,  un- 
154.  While  a  husband  and  wife  both  less  the  separate-estate  intention  is 
live  on  her  land  held  as  general  estate,  clearly  expressed.  Ewing  v.  Helm,  2 
the  possession  of  the  products  is  pre-  Tenn.  Ch.  368. 

197 


§  120  a  THE   DOMESTIC    RELATIONS.  [PART    IJ. 

York  courts  approve  the  new  system  to  its  widest  extent,  thus 
far ;  and  it  would  appear  that  married  women  in  that  State  are 
well-nigh  emancipated  altogether  from  marital  restraints,  so 
far  as  concerns  their  property,  while  the  husband's  own  rights 
therein  are  exceedingly  precarious.1  And  our  constant  diffi- 
culty in  asserting  a  principle  is  that  changes  in  all  married 
women's  acts  tend  in  the  direction  of  making  her  more  and 
more  independent  in  her  property  relations.  Where  the  in- 
vestment stands  clearly  in  the  wife's  name,  the  latest  tendency  is 
in  this  country  to  deem  it  prima  facie  her  independent  property 
without  requiring  the  use  of  such  words  as  "  separate "  to 
exclude  the  husband.2 

To  ascertain  as  a  fact  whether  the  ownership  be  in  wife  or  hus- 
band, evidence  of  how  the  matter  was  understood  and  treated 
between  the  spouses  may  be  quite  essential;3  for  a  sort  of  joint 
possession  on  their  part  is  often  the  practical  situation  of  the 
case.4  And  thus  does  one  State  regard  the  wife's  right  to  her 
own  acquisitions  as  the  rule,  and  another  as  the  exception.  In 
New  York,  since  the  passage  of  the  married  women's  acts, 
there  is  no  presumption  that  the  husband  is  in  occupation  of 
his  wife's  lands ;    and   where  ejectment  is  brought  to  recover 

1  Peters  u.  Fowler,  41  Barb.  467 ;  where  the  rights  of  creditors  are  in- 
Knapp  v.  Smith,  27  N.  Y.  277.  See  volved.  But  this  is  not  possible  with 
also  42  Ark.  62;  80  Mo.  626;  Schmidt  reference  to  the  personal  goods  of  a 
?•.  Schmidt  (1894),  Minn.;  38  Neb.  61  ;  married  woman.  She  cannot  have  or 
a:>  Minu.  298;  Stewart  v.  Fellows,  128  use  her  property  exclusively,  unless 
111.  480.  she  lives  apart  from  her  husband.     It 

2  <  gaiter's  Estate,  147  Penn.  St.  124 ;  was  not  the  intention  of  the  legislature 
Long  v.  McKay,  84  Me.  199.  to  compel  a  separation  in  order  to  save 

'■'  Hill  v.   Chambers,  30   Mich.  422-  the  wife's   rights;    but   if  the  rule  of 

In  this  State  the  obvious  inclination  is  exclusive  possession  were  adopted,  the 

to  determine,  not  by  presumptions  or  statute  would  lie  inoperative  as  long  as 

inferences,  bat  npon  the  facts.    H>.  they  live  together.    But  this  shows  how 

1  Gamber  <•.  Gamber,  18  Penn.  St.  necessary  it  is  to  demand  the  clearest 
S63,  And  see  Kenney  u.  Good,  21  Penn.  proof  of  the  wife's  original  right." 
Bt  349.  As  the  rule  is  usually  ex-  Gamber  v.  Gamber,  supra.  The  pro- 
pounded, presumptions  bear  heavily  ciple  that  possession  of  personal  prop- 
against  the  wife  iii  contests  of  title,  but  erty  is  prima  facie  proof  of  ownership 
more  especially  win.- re  the  rights  of  a  applies  to  a  wife's  separate  property, 
husband  en  ditors  are  affected  by  the  whether  the  possession  he  in  her,  in  her 
decision.  "  Between  strangers,"  it,  is  husband  as  trustee,  or  in  both  jointly, 
ed  ina  Pennsylvania  case, "  open,  in  recognition  of  her  right,  72  Ala. 
visible,  notorious,  and  exclusive  posses-  406. 
siou    is  the    test   of    tine    in    all   cases 

198 


CHAP.  IX.]     WIFE'S  SEPARATE  PROPERTY, 


§122 


possession  of  such  lands,  whether  she  was  occupying  them  at 
the  commencement  of  the  action,  or  had  given  to  her  husband 
the  possession,  is  to  be  determined  as  a  question  of  fact.1  A 
gift  of  the  income  of  the  wife's  property,  where  her  husband 
manages  it,  will  be  more  readily  presumed  than  a  gift  to  him  of 
the  corpus ;  and  income  from  both  spouses  goes  often  thus  for 
family  and  household  expenses.2 

§  121.  Schedule  or  Inventory  of  Wife's  Property.  — The  re- 
quirement in  a  few  States  is  that  the  wife's  separate  property 
shall  be  scheduled  or  inventoried  in  order  to  receive  legal  pro- 
tection for  her  separate  benefit.3  If  some  schedule  or  registry 
system  were  practicable  to  make  the  wife's  property  distin- 
guishable by  third  parties  from  her  husband's,  it  would  relieve 
the  situation  from  much  fraud  and  uncertainty. 

§  122.  Statutory  and  Equitable  Separate  Property.  —  In 
New  York,  Mississippi,  and  Pennsylvania  it  is  held  that  the 
married  women's  act  does  not  oust  the  original  jurisdiction  of 
courts  of  equity  in  cases  affecting  the  separate  estates  of  married 
women.4     Our  marital  legislation,  in  other  words,  applies  solely 


1  Martin  v.  Rector,  101  N.  Y.  77. 
Cf.  §  89.     And  see  131  N.  Y.  211. 

2  Haver's  Estate,  140  Penn.  St.  420. 
Under  our   latest   married  women's 

acts,  the  courts  are  less  than  ever  dis- 
posed to  presume  that  a  husband  wlio 
receives  a  fund  of  his  wife's  takes  it  to 
himself  as  his  own  by  virtue  either  of 
marital  authority  or  as  an  intended  gift 
from  her.  He  is  rather  supposed  to  re- 
ceive it  as  her  trustee  or  managing 
agent  and  to  be  accountable  accordingly. 
Wormley's  Estate.  101  Penn.  St.  101  ; 
Chadboum  v.  Williams,  45  Minn.  298; 
Dnggan  v.  Wright.  157  Mass.  228.  But 
cf.  139  111.  424.  All  such  presumptions, 
in  one  direction  or  the  other,  yield  to 
evidence  of  the  facts.  See  157  Penn. 
St.  246. 

3  Price  v.  Sanchez,  8  Fla.  136; 
Humphries  v,  Harrison,  30  Ark.  79; 
Selover  v.  Commercial  Co.,  7  Cal.  266; 
Le  Gierse  v.  Moore,  59  Tex.  470 ; 
Schouler,  Has.  &  Wife,  §  222.  This 
registry    law,   after   having   called   for 


considerable  construction  in  the  courts, 
appears  to  have  finally  been  repealed 
in  Iowa.  Schmidt  v.  Holtz,  44  Iowa, 
448.  And  elsewhere  schedules  are 
treated  as  not  indispensable.  42  Ark. 
62. 

4  Mitchell  v.  Otey,  23  Miss.  236; 
Colvin  v.  Currier,  22  Barb.  371  (Strong, 
J.,  dissenting.)  See  the  recent  case  of 
Wood  v.  Wood,  83  N.  Y.  575,  where 
Folger,  C.  J.,  observes  that  the  married 
women's  acts,  by  their  own  operation, 
changed  the  wife's  capacity  to  hold  a 
separate  estate  as  a  matter  of  equity 
into  a  legal  estate.  So,  too,  in  a  Mich- 
igan case,  it  is  observed  that,  as  re- 
gards the  wife's  individual  property, 
the  married  women's  legislation  has 
done  little  more  than  to  give  legal 
rights  and  remedies  to  the  wife,  where 
before,  by  settlement  or  contract,  she 
might  have  established  corresponding 
equitable  rights  and  remedies.  Snyder 
v.  People,  -26  Mich.  106.  And  see  Claw- 
son  v.  Clawson,  25  Ind.  229.     That  this 

199 


123 


THE   DOMESTIC    RELATIONS. 


[PART    II. 


to  the  wife's  statutory  separate  estate,  and  a  separate  equitable 
estate  may  still  be  created  by  deeds  of  trust  or  otherwise,  sub- 
ject to  the  same  rules  of  equity  as  heretofore.1  But  in  case  of 
doubt  the  preference  appears  to  be  in  favor  of  a  statutory 
separate  estate.2 

§  123.  American  Equity  Doctrine  j  Trustee  for  Separate  Prop- 
erty. —  Doubtless  the  married  women's  acts  have  given  a  fresh 
impulse  to  the  equitable  protection  of  married  women's  prop- 
erty, which,  as  we  have  stated,  had  been  quite  sparingly  exercised 
in  the  United  States  prior  to  the  first  legislative  enactments  on 
this  subject.  Where  the  separate  use  has  been  recognized  and 
enforced  at  all,  the  strict  American  rule  was  always  borrowed 
from  that  of  England.  And  the  latest  cases  show  an  increas- 
ing liberality  to  the  wife  in  our  courts  of  equity.  Thus  it  has 
been  frequently  said  that  the  wife's  separate  estate  requires  no 
trustee  to  sustain  it.3  For  when  no  other  trustee  is  interposed, 
the  courts  of  chancery  are  prepared  to  treat  the  husband  as 
such  by  virtue  of  his  possession  and  control  of  the  fund.4  And 
one  may,  by  his  acts,  make  himself  a  trustee  sub  modo  to  sup- 
port the  wife's  separate  use.5     Even  a    purchaser,  still  more  a 


legislation,  properly  so  called,  does 
not  profess  to  operate  upon  the  fam- 
ily relation,  or  take  from  the  hus- 
band his  marital  rights,  except  as 
pertaining  to  property,  is  frequently 
insisted  upon.  Snyder  v.  People,  26 
Mich.  105. 

"  The  estate  thu.s  assured  to  the 
wife,"  as  a  Pennsylvania  case  well  ob- 
serves, "is  only  analogous  to  the  equi- 
table separate  estate,  and  is  seriously 
modified  by  the  fact  that  she  has  no 
i;i  ee  separate  from  her  husband ;  and 
e  therefore,  as  the  Legal  guar- 
dian oi  her  rights,  necessarily  becomes 
in  ;i  Large  sense  her  trustee,  but  without 
all  of  the  law's  suspicion  of  his  dealing 
with  the  trust  property,  for  the  com- 
munity   "I    interests  and   sympathies  of 

id  and  w  ife  forbid  I  his."  Lowrie, 
<  -i  ,  in  Walker  v.  Reamy,  36  Penn.  St. 
4lo,  41  i. 

1   MacConnell  v.  Lindsay,  131   Penn 

St.   I7li;   88   Ala.   181.      Such   trusts  are 

200 


often  created  by  a  devise  or  will,  or 
uuder  a  marriage  settlement. 

-  Bolman  v.  Overall,  86  Ala.  168. 
Loeb  v.  McCullough,  78  Ala.  533,  over- 
rules Turner  v.  Kelly,  70  Ala.  83,  as  to 
the  conversion  of  the  former  into  the 
latter  by  marital  consent. 

3  McKennan  v.  Phillips,  6  Whart. 
571  ;  Thompson  v.  McKusick,  3  Humph. 
631  j  Fellows  v.  Tann,  9  Ala.  999; 
Trenton  Banking  Co.  v.  Woodruff,  1 
Green  Ch.  117. 

1  Boykin  v.  Ciples,  2  Hill,  Ch.  200; 
Hamilton  v.  Bishop,  8  Yerg.  33;  Wal- 
lingsford  v.  Allen,  10  Pet.  583;  Porter 
v.  Bank  of  Rutland,  19  Vt.  410;  Schou- 
ler,  Hns.  &  Wife,  §  224,  and  cases  cited  ; 
Pepper  v.  Lee,  53  Ala.  33  ;  Richardson 
V.  Stodder,  100  Mass.  528.  And  thus  is 
the  statute  of  limitations  prevented 
from  barring  the  wife's  claim  upon  him. 
89  K  v.  314. 

'■<  Sledge  v.  Clopton,  6  Ala.  589 


CHAP.  IX.]     WIFE'S  SEPARATE  PROPERTY. 


§124 


volunteer,  taking  possession  of  the  trust  property,  with  a  notice 
of  the  trust,  will  be  made  a  trustee  in  chancery.1 

§124.  Equity  Doctrine;  How  Separate  Use  Created.  —  So, 
too,  an  intention  clearly  manifested  to  create  a  separate  estate 
has  always  been  deemed  necessary  in  our  courts,  in  order  to 
exclude  the  husband's  marital  rights.  The  mere  intervention 
of  a  trustee  is  insufficient.2  The  language  employed,  if  language 
be  necessarily  relied  on,  must  be  suitable.3     And  provisions  for 


1  Jackson  v.  McAliley,  Speers,  Eq. 
303  ;  Fry  v.  Fry,  7  Paige,  Ch.  461. 

2  Hunt  v.  Booth,  1  Freem.  Ch.  215; 
Evans  v.  Knorr,  4  Rawle,  66  ;  Taylor 
v.  Stone,  13  S.  &  M.  653 ;  Schouler, 
Hus.  &  Wife,  §  225. 

3  Thus,  in  North  Carolina,  the  words, 
"  for  her  use,"  have  been  held  sufficient 
to  exclude  the  husband's  dominion. 
Steel  v.  Steel,  1  Ired.  Eq.  452.  So,  too, 
the  words,  "  for  the  entire  use,  benefit, 
profit,  and  advantage."  Heathman  v. 
Hall,  3  Ired.  Eq.  414.  But  in  South 
Carolina,  the  words,  for  "  the  use  of  his 
wife,"  are  held  insufficient.  Tennant  v. 
Stouey,  1  Rich.  Eq.  222 ;  M'Donald  17. 
Crockett,  2  McC.  Ch.  130.  In  Ken- 
tucky the  words,  "  for  her  own  proper 
use  and  benefit,"  are  held  sufficient. 
Griffith  v.  Griffith,  5  B.  Mom-.  113. 
Such,  too,  seems  to  have  been  the  rule  in 
Alabama.  Warren  v.  Halsey.  1  S.  &  M. 
Ch.  647.  And  see  131  Penn.  St.  470 ; 
150  Penn  St.  275  ;  Hays  v.  Leonard,  155 
Penn.  St.  474.  The  words,  "  to  the  use 
and  benefit,"  are  held  sufficient  in  Ten- 
nessee. Hamilton  v.  Bishop,  8  Yerg. 
33.  So,  in  Alabama,  words  importing 
enjoyment  "  without  let,  hindrance,  or 
molestation  whatever."  Newman  v. 
James,  12  Ala.  29.  And  where  one 
clause  of  a  will  applies  the  words,  "  in 
trust  for  the  separate  use,"  to  certain 
property,  and  another  applies  to  certain 
property  the  words  "  in  trust  "  only,  the 
separate  use  may  by  construction  em- 
brace the  whole.  Davis  v.  Cain,  1 
Ired.  Eq.  304.  The  word  "  exclusively  " 
in  the  wife's  favor  is  held  to  exclude  the 
husband.  Gould  v.  Hill,  18  Ala.  84. 
So,  too,  "  to  be  hers  and   hers  only." 


Ellis  v.  Woods,  9  Rich.  Eq.  19;  Ozley 
v.  Ikelheimer,  26  Ala.  332. 

No  specific  words  are  needful  if  the 
intention  clearly  appears.  81  Ky.  129, 
308.  In  a  conveyance  to  a  married 
woman  a  separate  equitable  estate  may 
be  created  by  words  used  only  in  the 
habendum  clause.  Turner  v.  Kelly,  70 
Ala.  85.     Cf.  39  Ark.  434. 

Trust,  to  pay  income  to  a  wife  "  foi 
and  during  the  joint  lives  of  her  and 
her  husband,  taking  her  receipt  there- 
for," is  held  to  give  her  a  sole  and  sep- 
arate estate  in  the  income.  Charles  v. 
Coker,  2  S.  C.  n.  s.  122.  Trust  to 
"  exclusive  use,  benefit,  and  behoof  "  is 
held  sufficient  to  create  a  separate  use. 
Williams  v.  Avery,  38  Ala.  115.  So, 
too,  "  for  her  own  use  and  benefit,  in- 
dependent of  any  other  person."  Wil- 
liams v.  Maull,  20  Ala.  721  ;  Ashcraft 
v.  Little,  4  Ired.  Eq.  236.  So,  too,  "  ab- 
solutely," in  a  suitable  connection. 
Brown  r.  Johnson,  17  Ala.  232;  Short 
v.  Battle,  52  Ala.  456.  So,  too,  "  to  be 
for  her  own  and  her  family's  use  during 
her  natural  life."  Heck  v.  Clippenger, 
5  Penn.  St.  385;  Hamilton  v.  Bishop, 
8  Yerg.  33.  Or,  "  for  the  use  and  bene- 
fit of  the  wife  and  her  heirs."  Good  v. 
Harris,  2  Ired.  Eq.  630.  But  cf.  Vail 
v.  Vail,  49  Conn.  52.  Or,  "  not  to  be 
sold,  bartered,  or  traded  by  the  hus- 
band." Woodrum  v.  Kirkpatrick,  2 
Swan,  218;  Clarke  v.  Windham,  12 
Ala.  798. 

On  the  other  hand,  there  is  authority 
against  permitting  such  expressions  as 
these  to  create  the  separate  use  :  "  for 
the  use  and  benefit  of."  Clevestine's 
Appeal,    15   Penn.    St.   499  ;    Fears    v, 

201 


§124 


THE  DOMESTIC   RELATIONS. 


[PART   II. 


the  sole  and  separate  use,  support,  and  maintenance  of  a  wife 
and  children  are  frequently  sustained,  though  the  trust  does  not 
vest  their  respective  interests  consecutively.1  As  in  England, 
our  courts  permit  an  estate  to  be  so  settled  on  an  unmarried 
female  as  to  exclude  the  marital  rights  of  any  future  husband.2 

On  the  whole,  it  is  apparent  that  there  is  much  contrariety 
in  the  decisions,  so  far  as  relates  to  technical  expression.  Courts 
of  equity,  as  such,  will  not  deprive  the  husband  of  his  legal 
rights  upon  any  doubtful  construction  of  language.3  But  the 
question  relates  rather  to  intention,  to  substance,  and  not  literal 
expression ;  and  any  language  is  now  deemed  usually  sufficient, 
whatever  the  technical  words,  which  clearly  expresses  the  intent 
to  create  a  separate  estate  for  the  wife,  independently  of  her 
husband's  control.4 

In  the  courts  of  this  country,  moreover,  the  statute  policy  is 
found  to  supplement  equity.  As  a  general  rule  an  equitable 
trust  by  instrument  requires  the  construction  of  that  instrument 


Brooks,  12  Ga.  198  ;  Tennant  v.  Stoney, 
1  Rich.  Eq.  222;  Frout  v.  Roby,  15 
Wall.  471;  Merrill  v.  Bullock,  105 
Mass.  486 ;  Guishaber  i«.  Hairman,  2 
Bush,  320.  Or,  to  the  wife  "  in  her 
own  right,"  as  in  the  English  cases. 
lb.  ;  supra,  §  105.  Or,  "for  the  joint  use 
of  husband  and  wife  "  Geyer  v.  Branch 
Bank,  21  Ala.  414.  Cf.  Charles  v. 
Coker,  2  S.  C.  n.  s.  122.  See  post, 
ch.  14,  as  to  conveyances  to  husband 
and  wife.  Or,  "  to  her  and  the  heirs  of 
her  body  and  to  them  alone,"  and  sim- 
ilar expressions.  Clevestine's  Appeal, 
15  Penn.  St.  499  ;  Bryan  v.  Duncan,  11 
Ga.  C7 :  Foster  v.  Kerr,  4  Rich.  Eq. 
390.  Or  where,  instead  of  restraint  of 
husband's  righl  of  disposition,  is  stated 
;t  mere  exemption  from  liability  for  his 
debts.  Harris  r.  Harbeson,  9  Bush, 
397;  Gillespie  v.  Burlinson,  28  Ala. 
551.  Bui  Bee  Young  v.  Young,  3  Jones 
Eq.  266.  Or  to  some  one's  wife,  without 
further  exclusive  description.  Moore  v. 
13  Ala  296;  Fitch  v.  Ayr,  2 
<  onn  i  13  Shirley  v.  Shirley,  9  Paige, 
364  A  gifl  ''.  ■•  ill  of  a  farm  and  the 
personal  property  on  it  which  Lb  qoG 
"  202 


limited  by  words  excluding  the  hus- 
band's marital  rights,  is  not  the  wife's 
separate  estate.  Hubbard  v.  Bugbee, 
58  Vt  172.  Nor  does  a  deed  in  ordi- 
nary form  confer  a  separate  estate  in 
equity.  20  Ela.  940.  Nor  does  the 
mere  intervention  of  a  trustee.  66  Ala. 
476,  547.  And  see  42  Ark.  503  ;  81  Ky. 
308;  104  Penn.  St.  567;  131  Penn.  St. 
256;   107  Mo.  422. 

But  the  words,  to  the  wife's  "sole 
and  separate  use,"  are  most  commonly 
applied.  Or,  "  solely  for  her  own  use." 
See  last  c,  §  105.  Or,  "  for  the  sole 
use  and  benefit  of."  Schouler,  Hus.  & 
Wife,  §§  226,  227,  and  cases  cited ;  82 
Ky.  129. 

1  Good  v.  Harris,  2  Ircd.  Eq.  630; 
Hamilton  ».  Bishop,  8  Yerg.  33;  An- 
derson v.  Brooks,  1 1  Ala.  953. 

2  Beaufort  v.  Collier,  6  Humph.  487; 
O'Kill  v.  Campbell  3  Green  Ch.  13; 
Ordway  v.  Bright,  7  Heisk.  681. 

;1  Buck  v.  Wroten,  24  Gratt.  250; 
Bowen  v.  Sebree,  2  Bush,  112. 

*  See  Trout  v.  Roby,  15  Wall.  471  ; 
Gaines  V.  1'oor,  3  Met.  (Ky.)  503. 


CHAP.  IX.]  WIFE'S    SEPARATE    PROPERTY.  §    126 

to  operate.  But  this  does  not  necessarily  conclude  the  wife.  For 
while  an  equitable  separate  estate  is  created,  where  the  intent 
to  exclude  the  marital  rights  of  the  husband  clearly  and  un- 
equivocally appears  from  the  force  and  certainty  of  the  terms 
employed,  the  local  statute  may  intervene  where  the  intent  is 
doubtful,  equivocal,  or  open  to  speculation,  and  fix  the  char- 
acter of  the  estate  as  the  wife's  separate  statutory  and  legal 
estate.1  On  the  other  hand,  a  conveyance  or  trust  duly  created 
for  a  married  woman's  separate  benefit,  and  duly  expressed,  is 
to  be  regarded  as  her  equitable  rather  than  her  statutory 
estate.2 

§  125.  Equity  Doctrine  ;  Acquisition  by  Contract  ;  Produce 
and  Income.  —  A  married  woman  cannot  by  contract  acquire 
any  property  to  her  separate  use  ;  but  the  benefit  of  her  con- 
tract, if  any,  enures  to  her  husband.3 

The  savings  of  the  interest  arising  from  the  separate  estate  of 
a  married  woman  are  as  much  separate  property  as  the  princi- 
pal, unless  she  has  suffered  them  to  pass  under  her  husband's 
marital  control.  And  property  purchased  with  such  savings 
belongs  to  her  and  continues  subject  to  the  same  rules.4  But 
furniture  purchased  by  the  wife  with  the  income  of  her  separate 
estate,  and  mixed  with  the  furniture  of  the  husband,  becomes 
presumably  the  property  of  the  husband,  unless  it  was  under- 
stood between  them,  at  the  time  of  the  purchase,  that  the  prop- 
erty should  be  kept  by  him  as  her  trustee  merely ; 5  for  it  is 
both  natural  and  proper  that  the  wife  should  bestow  her  income 
so  as  to  follow  the  common-law  rule,  thus  helping  to  defray  the 
family  expenses  and  maintain  the  household  establishment. 

§  126.  Equity  Doctrine;  Preserving  Identity  of  Fund.  —  In- 
deed, as  to  mingled  funds  generally,  the  rule  applies  that  equity 
will  not  interfere  where  a  fund  set  apart  for  the  wife's  sole  ben- 

1  Short  v.  Battle,  52  Ala.  456.  »  Lansier  v.  Ross,  1  Dev.  &  Bat.  Eq. 

2  Pepper  v.  Lee,  53  Ala.  33;  Musson  39.  But  see  Finney  v.  Fellows,  15  Vt. 
v.  Trigg,  51  Miss.  172.  As  to  the  ere-  525;  Schouler,  Hus.  &  Wife,  §  250; 
ation  of  parol  trusts  for  separate  use,  supra,  %  116  (statute). 

see  Schouler,  Hus.  &  Wife,  §  228;  For-  4  Merritt  v.  Lyon,  3  Barb.  110;  Hort 

ter  n.  Bank  of   Rutland,   19    Vt.  410;  v.   Sorrell,    11    Ala    386.     See   Kee   v. 

Spaulding  v.  Day,   10  Allen,  96  ;  Wat-  Vasser,  2  Ired.  Eq.  553  ;  supra,  §  106. 
eon  v.  Broaddus,  6  Bush,  328.  5  Shirley  v.  Shirley,  9  Paige,"  363. 

203" 


§  127  THE    DOMESTIC    RELATIONS.  [PART   II. 

efit  has  become  mixed  with  other  funds  beyond  the  possibility 
of  identification.1  But,  on  the  other  hand,  the  proceeds  of  a 
transfer  of  the  wife's  separate  property,  which  it  is  understood 
shall  be  the  wife's,  may  be  followed  by  her  in  equity,  provided 
she  can  trace  the  identity,  and  has  acted  consistently  with  her 
claim  of  title,  even  though  the  husband  takes  the  title  in  him- 
self.2 Thus,  if  land  is  bought  with  the  wife's  money  the  land 
in  equity  is  hers  as  to  the  husband  and  his  general  creditors ; 
and  if  land  is  bought  partly  with  his  money  and  partly  with 
hers,  her  just  share  on  a  partition  will  be  protected.3  A  dis- 
tinction may  sometimes  be  requisite  between  the  case  where  a 
wife  asserts  her  equitable  title  against  her  husband,  and  that 
where  her  title  is  claimed  against  bona  fide  purchasers  from  the 
husband,4  bavin?  neither  actual  nor  constructive  notice  of  her 
title.5 

§  127.  Equity  Doctrine;  Separate  Use  only  in  Married  State; 
How  Ambulatory. — -In  the  United  States,  as  in  England,  the 
separate  estate  in  equity  continues  only  during  the  marriage 
state,  with  probably  similar  qualifications.6  The  husband  sur- 
viving his  wife  has  the  same  rights  in  her  separate  estate  as  in 
her  other  property,  even  though  another  be  appointed  adminis- 
trator.7 The  estate  of  the  trustee,  as  such,  terminates  on  the 
wife's  death.8  And  yet  if  the  husband,  on  survivorship,  is  en- 
titled to  his  wife's  separate  personal  estate  by  virtue  of  his  mari- 
tal rights,  he  must,  in  order  to  obtain  it  from  others,  and  have 
a  firm  title  against  creditors,  take  out  letters  of  administration, 
as  American  cases  hold,  —  at  least  where  antenuptial  debts  of 
the  wife  have  not  been  recovered  during  marriage.9 


1  Bock  v.  Ashbrook,  59  Mo.  200.  purport,  to  the  husband.     89  Ky.  414; 

2  Dula   v.    Young,    70   N.   C.   450;  89  Ala.  544. 

Ea   'ii  v.   l'v.  :>]  Ala.  381;  Martin  v.  5  See  supra,  §  108. 

Colburn,    88    Mo.   229;  63  Iowa,   020;  ,;  Supra,  §  107. 

Mowry  v.  Hawkins,  57  Conn.  453.  7  Spann  v.  Jennings,  1  Hill,  Ch.  825  ; 

;  Sawyers  /•.  Baker,  77  Ala.  461,472;  Good  v.  Harris, 2  lied.  K<j.03O;  McKay 

Mitchell    '••  Colglazier,    lot;    [nd.    lot.  v.  Allen,  6  Yerg.  44.    And  see  Cooney 

And    ee  §  194  v.  Wbodburn,  38  Md.  320,  where  wife 

1  Or  even  as  against  creditors  with-  left  no  issue  surviving. 

out  notice  in  certain  cases  who  relied  on  s  Bercy  v.  Lavretta,  03  Ala.  374. 

the  fond  as  belonging,  according  to  its  "McKay    v.    Allen,    6    Yerg.    44; 


204 


Schooler,  Hob.  &  Wife,  §  233, 


CHAP.  IX.]  WIFE'S    SEPARATE   PROPERTY.  §  129 

Consisteutly  with  its  intent,  the  separate  use  may  have  an 
ambulatory  operation,  as  under  the  English  rule,  ceasing  when 
the  wife  becomes  a  widow,  and,  if  left  undisposed  of,  reviving, 
supposing  she  marries  again.1  Where  the  trust  for  a  wife's  sole 
benefit  is  expressed  to  be  free  from  the  control  of  "  any  present 
or  future  husband,"  equity  will  not  set  the  trust  aside  on  the 
death  of  a  husband.2  But  it  is  held  in  this  country  that  if  a 
married  woman  having  a  separate  estate  survives  her  husband, 
the  restraints  upon  the  disposal  of  the  estate,  inconsistent  with 
its  general  character,  cease  with  the  coverture.3  Yet  here,  as  in 
England,  the  terms  of  a  conveyance  to  separate  use  may  be  broad 
enough,  as  expressed,  to  bar  out  a  husband  forever.4 

§  128.  Equity  Doctrine  ;  Whether  Marital  Obligations  Affected. 
—  The  English  doctrine  that  the  wife's  separate  estate  is  not 
necessarily  liable  for  her  own  general  or  antenuptial  debts  is 
also  admitted  here.5  Nor,  in  the  absence  of  an  intention  on 
the  wife's  part  to  make  such  estate  liable,  can  it  be  subjected  to 
her  general  debts  contracted  during  coverture.6  And  in  gen- 
eral the  husband's  obligation  to  maintain  his  wife  and  family 
remains  unaffected  by  the  fact  that  the  wife  holds  separate 
property.7 

§  129.  Equity  Doctrine  ;  Restraint  upon  Anticipation.  —  Amer- 
ican courts  have  seldom  to  consider  clauses  of  restraint  against 
anticipation  or  alienation,8  a  subject  to  which  English  chancery 
courts  have  devoted  so  much  attention.     Restraining  a  wife's 

1  Supra,  §  107.  forever.     Haight  v.  Hall,  74  Wis.  152; 

2  O'Kill  v.  Campbell,  3  Green,  Ch.     supra.  §  107. 

13.  6  Vaud  er  hey  den  v.  Mallory,  1  Comst. 

3  Smith     v.    Starr,    3    Whart.    62;     452. 

Pooler  v,  Webb,  3  Cold.  599;  Thomas  6  Knox  r.  Picket,  4  Desaus.  92;  Gee 

v.  Harkness,   13  Bush,  23.     See  Perry,  v.  Gee,  2  Dev.  &  Bat.  103;  Haygood  v. 

Trusts,   §  652  ;  Schouler,  Hus.  &  Wife,  Harris,  10  Ala.  291  ;  Curtis  v.  Engel,  2 

§  234.     For  a  peculiarity  in  the  Penn-  Sandf.   Ch.  287.     But  a  disposition  to 

sylvania   rule   as   to    contemplation   of  overthrow   this   harsh   rule   appears  in 

future    marriage,   in    such   trusts,   see  some  States.     Schouler,  Hus.  &  Wife, 

Schouler,  Hus.  &  Wife,  §  234 ;  Snyder's  §235;  Dickson  v.  Miller,  11   S.   &   M. 

Appeal,   92   Penn.   St.   504 ;    Bercy  v.  594.     See  §  134  et  seq. 
Lavretta,  63  Ala.  374.  "'  Meth.   Ep.   Church   v.  Jaques,    1 

4  A  husband,  e.  g.,  can  claim  no  Johns.  Ch.  450;  Dodge  v.  Knowles,  114 
curtesy  on  surviving  the  wife  in  land  U.S.  430;  Baker  v.  Stratton,  52  N.  J. 
conveyed  expressly  to  the  separate  use  L.  277.     But  see  §  144  a. 

of  the  wife  and  her  heirs  and  assigns         8  Supra,  §  110. 

205 


§  131  THE   DOMESTIC    RELATIONS.  [PART    II. 

power  to  deal  with  her  separate  property  seems,  in  American 
policy,  too  much  like  denying  her  a  separate  property.  Yet 
there  are  good  grounds  for  such  constraint ;  and  in  various  in- 
stances our  State  courts  find  occasion  to  recognize  such  clauses.1 
The  restraint  is  held,  as  in  England,  to  apply  equally  to  real  or 
personal  property,  and  to  estates  in  fee  or  for  life.  It  will  come 
into  operation,  like  the  separate  use  to  which  it  is  attached, 
where  a  woman  marries ;  but  it  exists  only  in  the  marriage 
state,  since  one  sui  juris  is  unrestrainable  by  any  such  means 
from  exercising  the  ordinary  rights  of  ownership,  whether 
widow  or  maiden.2 


CHAPTER   X. 

THE   WIFE'S    DOMINION  OVER   HER  EQUITABLE    SEPARATE  PROPERTY. 

§  130.  General  Principle  of  Wife's  Dominion. — The  right  to 
enjoy  property  carries  with  it,  universally,  as  a  necessary  inci- 
dent, the  right  of  its  free  disposal.  All  other  things,  then, 
being  equal,  we  shall  expect  to  find  that  married  women,  when 
allowed  to  hold  estate  to  their  separate  use,  are  permitted  to 
sell,  convey,  give,  grant,  bargain,  or  otherwise  dispose  of  it ; 
and  further,  to  encumber  it  with  their  debts  as  they  please. 
Public  policy  may,  however,  restrain  their  dominion.  Our 
present  discussion  relates  to  the  wife's  dominion  over  her 
equitable  separate  property.  The  wife's  dominion  over  statu- 
tory separate  property,  or  that  held  under  our  married  women's 
acts,  will  be  reserved  for  the  chapter  succeeding. 

§  131.  "Wife,  unless  restrained,  has  Full  Power  to  Dispose  — 
The  clause  6f  restraint  upon  anticipation  or  alienation,  and  its 

1  Freeman    v.    Flood,    16   Ga.    5i>8 ;  ocal  expression  of    intent  to  restrain 

dicta  in  Wilburn  v.  McCalley,  63  Ala.  the  jus  disponendi.     A  declaration  that 

Burnett  v.  Hawpe,  25  Gratt.  181.  the  property  shall  not  be  liable  for  her 

a  Well*  >■■  McCall,  64  Penn.  8t.207;  debts,  &c,  is   insufficient.     Witsell   v. 

r  v.  Converse,  5  Gray,  886  Charleston,   7   S.   C.  88;    Radford    v. 

There  musl  be  a  clear  and  nnequiv-  Carwile,  13  W.  Va.  572. 

206 


CHAP.  X.]      DOMINION  :  WIFE'S  EQUITABLE  PROPERTY.      §  132 

important  effect  upon  the  wife's  power  of  disposal,  we  have 
already  dwelt  upon.  Apart  from  this,  in  England,  it  is  the 
general  rule,  so  far  at  least  as  concerns  personal  property,  that 
from  the  moment  the  wife  takes  the  property  to  her  sole  and 
separate  use,  from  the  same  moment  she  has  the  sole  and  sepa- 
rate right  to  dispose  of  it;  for,  upon  being  once  permitted  to 
take  personal  property  to  her  separate  use  as  a  feme,  sole,  she 
takes  it  with  all  its  privileges  and  incidents,  including  the  jus 
disponcndi}  And  while  she  may  be  restrained  by  language  of 
the  instrument  under  which  her  title  is  acquired,  amounting  to 
a  clause  restraining  anticipation,  for  instance,  yet  the  intention 
to  restrain  her  must  be  clearly  expressed ;  or  else  she  may  deal 
with  the  property  as  she  pleases,  either  by  acts  inter  vivos,  or 
by  testamentary  disposition.2  Her  power  of  disposition  is  not 
confined  to  interests  vested  in  possession,  but  extends  to  rever- 
sionary interests  settled  to  her  separate  use.3 

§  132.  Same  Principle  applies  to  Income. — The  same  prin- 
ciple applies  to  the  income  and  profits  and  rents  of  the  wife's 
separate  property.  The  wife  has  the  same  control  over  her 
savings  out  of  her  separate  estate  as  over  the  separate  estate 
itself ;  "  for,"  to  use  the  somewhat  involved  metaphor  of  Lord 
Keeper  Cowper,  so  often  quoted,  "  the  sprout  is  to  savor  of  the 
root,  and  to  go  the  same  way."  4  Following  this  general  doc- 
trine, the  wife,  if  unrestricted  by  the  terms  of  the  trust,  may 
anticipate  and  encumber  rents  settled  apart  for  her  separate 
use.5  But  where  the  trust,  by  suitable  expression,  restrains  the 
wife  from  anticipation,  permitting  her  only  to  receive  the  income 
from  her  trustee  from  time  to  time  as  it  falls  due,  she  cannot 
anticipate  and  encumber  her  income.6 

1  Fettiplace  v.  Gorges,  1  Yes.  Jr.  48 ;  i  Gore  v.  Knight,  2  Yern.  535  ;  B.  c. 

3  Bro.  C.   C.  9  ;  Peachey,  Mar.   Settl.  Prec.  in  Ch.  255.     See  also  Messenger 

261,262.     See  20  &  21  Viet.  c.  57,  the  v.  Clarke,  5  Exch.  392;  Peachey,  Mar. 

"  reversionary  act  "  Settl.    262;    Newlands   v.  Paynter,    10 

-  Rich  o.  Cockell,  9  Ves.  369  ;  Moore  Sim.  377  ;  s.  c.  on  appeal,  4  M.  &  Cr. 

v.  Morris,  4  Drew.  38;  Darkin  v.  Dar-  408;    Humphery    v.   Richards,    2    Jur. 

kin,  17  Beav.  581  ;  Caton  v.   Rideout,  n.  s.  432. 
1  Mac.  &  Gord.  601.  5  Cheever  v.  Wilson,  9  Wall.  108. 

3  2  Bright,  Hus.  &  Wife,  222  :  Macq.  6  Chancellor    Kent,     in     Jaques    v. 

Hus.  &  Wife,  295;  Sturgis  v.  Corp,  13  Methodist  Episcopal  Church,  3  Johns. 

Ves.  192;  Headen  v.  Rosher,  1  M'Cl.  &  Ch.  77. 
Y.  89;  Donne  v.  Hart,  2  Russ  &M.360. 

207 


§  134  THE   DOMESTIC   RELATIONS.  LPART    TL 

§  133.  Technical  Difficulties  as  to  disposing  of  Real  Estate. — 
Where  the  wife's  separate  property  consists  of  real  estate,  her 
power  of  disposition  is  affected  by  technical  difficulties  as  to 
the  method  of  executing  conveyances.1  But  it  has  been  sug- 
gested in  England  that,  according  to  the  principle  of  modern 
equity  cases,  the  heir  ought  to  be  treated  as  a  trustee,  in  case 
the  wife  had  conveyed  her  beneficial  interest  by  deed  executed 
by  herself  alone,  and  that  thus  her  sole  conveyance  would  be 
allowed  to  operate.2  If  the  instrument  creating  the  trust  for  her 
benefit  expressly  provides  for  her  sole  conveyance,  such  convey- 
ance would  probably  be  good.3  In  most  parts  of  the  United 
States  a  married  woman  can  only  dispose  of  her  real  estate, 
whether  legal  or  equitable,  by  a  conveyance  according  to  statute, 
which  the  husband  executes  in  token  of  assent,  unless  at  least  the 
trust  states  differently ;  a  partial  reason  for  this  being  that  the 
husband  has  his  rights  of  curtesy  even  in  lands  settled  to  his 
wife's  separate  use.4  Eents  and  profits  of  her  separate  land,  or 
an  annuity  charged  upon  land,  follow  the  more  liberal  rule  of 
personal  property  held  as  her  separate  estate,5  unless  afterwards 
converted  into  land.6 

§  134.  Liability  of  Separate  Estate  on  Wife's  Engagements  ; 
English  Doctrine. — As  a  corollary  to  our  proposition,  the  wife 
may  enter  into  contract  with  reference  to  her  separate  property 
somewhat  as  a  feme  sole.  Formerly  it  was  otherwise  ;  and  for 
a  long  period  the  English  courts  of  equity  refused  to  married 

1  2   Roper,    Has.   &   Wife,    182;    1  4  Shipp  v.  Bowmar,  5  B.  Mon.  163; 

Bright,    Has.   &   Wife,   224.      See   Ex  Radford  v.  Carwile,  13  W.  Va.  572;  2 

parte  Ann    Shirley,  5   Bing.  226,  cited  Perry,  Trusts,  §  656;  supra,  §§  94-97; 

in   Macq.    litis.  &  Wife,  296.     See  also  McChesney  v.   Brown,  25  Gratt.  30.3; 

Peachey,    Mar.   Settl.    267;    Harris   v.  Koltenhack   v.   Cracraft,  36   Ohio    St. 

Mott,  14  Beav.  169.  584;  Miller  v.  Albertson,  73  Ind.  343. 

-  Macq.    Hus.   &  Wife,   296,  297;  2  But  in  New  York,  by  way  of  an  appoint- 

Story,  Eq.  Juris.  §  1890,  and  cases  cited  ;  ment,   a   married   woman   may  convey 

:j  Sugd    V.  &  P.  App.  62;  Newcomen  such   interests   without   the   joinder  of 

v,  Hassard,  4  Ir.  Ch.  274;  Biiruaby  v.  her  husband.     Albany  Fire  Ins.  Co.  v. 

Griffin,  3  Ves.  266 ;   Peachey,  Mar.  Settl.  Bay,  4  Oomst.  9.      See  Armstrong  w. 

268.     i  I  e  itatute  referred  to  as  raising  Boss,  5  C.  E.  Green,  109. 

[ifficulties  in  real  estate  is  3  6  Cheever  v.   Wilson,  9  Wall.    108; 

&  4  Will.  IV.  c.  74.  Vi/uneau   v.   Pegram,   2    Leigh,    183; 

136  a,  citing  25  Gratt.  393,  Major  v.  Lansley,  2  R  &  M.  355. 

and   other  cases;    Pitts  v.  Sheriff,   108  9  McChesney  v.    Brown,    25    Gratt. 

Mo.  no;  Taylor  v.  Cnssen  (1894),  Va,  393. 
208 


CHAP.  X.]     DOMINION  :    WIFE'S  EQUITABLE  PROPERTY.      §  134 

women  having  separate  estate  the  power  to  contract  debts.1 
But  the  unfairness  of  permitting  a  wife  to  hold  and  enjoy  her 
separate  property  after  she  had  incurred  debts  specifically  upon 
the  faith  of  it  soon  became  evident,  as  well  as  the  inconvenience 
she  suffered  in  being  unable  to  find  credit  where  she  meant  to 
deal  fairly.  So  the  courts  felt  compelled,  after  a  while,  to  admit 
that  she  might  in  equity  charge  her  separate  estate  by  a  written 
instrument,  executed  with  a  certain  degree  of  formality,  such  as 
a  bond  under  her  hand  and  seal.2  One  precedent  in  the  right 
direction  leads  to  another,  and  soon  less  formal  instruments 
were  brought,  one  after  another,  under  this  rule,  —  promissory 
notes,  bills  of  exchange,  and  lastly  written  instruments  in  gen- 
eral.3 Even  here  the  court  could  not  safely  intrench  itself ;  for 
the  inconsistency  of  drawing  distinctions  between  the  different 
sorts  of  engagements  of  a  married  woman  having  separate  estate 
could  be  readily  shown  ;  but  it  made  a  halt.  The  doctrine  of 
an  equitable  appointment  was  alleged  to  support  the  new  dis- 
tinction.4 Sound  reasoning  at  last  proved  too  strong  an  antago- 
nist ;  this  position  was  abandoned  ;  and  it  became  at  length  the 
settled  doctrine  of  the  equity  courts  of  England  that  the  engage- 
ments and  contracts  of  a  married  woman,  whether  general  or 
relating  specifically  to  her  separate  property,  are  to  be  regarded 
as  constituting  debts,  and  that  her  property  so  held  is  liable  to 
the  payment  of  them,  whether  the  contract  be  expressed  in 
writing  or  not ;  and  all  the  more  so  if  she  lives  apart  from  her 
husband,  and  the  debt  could  only  be  satisfied  from  her  separate 
property.5      "Inasmuch   as   her  creditors  have  not  the  means 

1  Vatighan  v.  Vanderstegen,  2  Drew,  and  cases  cited  ;  Tullett  v.  Armstrong, 
180;  Peachey,  Mar.  Settl.  269;  New-  4  Beav.  323;  Owen  v.  Homan,  4  H.  L. 
comen  v.  Hassard,  4  Ir.  Ch.  274.  Cas.  997.     Taking  a  lease  and  agreeing 

2  Biscoe  v.  Kennedy,  1  Bro.  C.  C.  to  pay  rent  comes  within  the  rule.  Gas- 
17;  Ilulme  v.  Tenant,  1  Bro.  C.  C.  16;  ton  v.  Frankum,  supra. 

Norton    v.    Turvill,   2   P.    Wms.    144;  4  Field  v.  Sowle,  4  Rnss.  112. 

Tullett  v.  Armstrong,  4  Beav.  32.3.  5  Peachey,  Mar.  Settl.  271,  272,  and 

3  See  Murray  v.  Barlee,  per  Lord  cases  cited ;  Vaughan  v.  Vanderstegen, 
Brougham,  3  Myl.  &  K.  210;  Bullpin  2  Drew.  184;  Owens  v.  Dickenson, 
».  Clarke,  17  Ves.  365  ;  Stuart  v.  Lord  Craig  &  Phil.  48 ;  Macq.  Hus.  &  Wife, 
Kirkwall,  3  Madd.  387;  Masters  Ful-  303;  Picard  v.  Hine,  L.  R.  5  Ch.  274. 
ler,  1  Ves.  Jr.  513;  Gaston  r.  Frankum,  But  see  Newcomen  v.  Hassard,  4lr  Ch. 
2  De  G.  &  Sm.  561  ;  s.  o.  on  appeal,  16  274 ;  1  Sugd.  Pow.  206,  7th  ed. 

Jur.   507 ;    Peachey,    Mar.    Settl.   270. 

14  209 


§  13-4  THE    DOMESTIC   RELATIONS.  [PART   II. 

at  law  of  compelling  payment  of  those  debts,"  says  Lord  Cotten- 
ham,  "  a  court  of  equity  takes  upon  itself  to  give  effect  to  them, 
not  as  personal  liabilities,  but  by  laying  hold  of  the  separate 
property  as  the  only  means  by  which  they  can  be  satisfied."  1 

But  while  the  contract  for  payment  of  money  made  by  a 
married  woman  having  separate  estate  creates  a  debt,  it  is,  prac- 
tically considered,  only  a  debt  sub  modo,  when  compared  with 
the  debt  of  a  man  or  an  unmarried  woman.  It  cannot  be 
enforced  against  her  at  law ;  and  Lord  Cottenham's  language 
indicates  that  it  is  enforceable  in  equity,  not  on  the  ground  that 
she  incurred  a  personal  obligation,  but  because  there  is  property 
upon  which  the  obligation  may  be  fastened.  Hence  it  is  said 
that  there  can  in  no  case  be  a  decree  against  a  married  woman 
in  personam ;  the  proceedings  are  simply  against  her  separate 
property  in  rem.2  And  though  she  is  a  necessary  party  to  a 
suit  to  enforce  payment  against  her  separate  estate,  yet,  if  that 
estate  be  held  in  trust  for  her  separate  use,  the  suit  must  be 
against  the  trustees  in  whom  that  property  is  vested ;  the  decree 
in  such  case  being  rendered,  not  against  her,  but  against  the 
trustees,  to  compel  payment  from  her  separate  estate.  More- 
over, if  the  wife  survive  her  husband,  although  the  creditors 
may  still  enforce  their  demand  in  equity  against  her  separate 
estate,  yet  her  person  and  her  general  property  remain  as  com- 
pletely exempted  from  liability  at  law  and  in  equity  as  in  other 
cases  of  debts  contracted  by  her  during  coverture.3 

Here,  however,  the  fictions  of  equity  create  a  new  practical 
difficulty.  For  if  the  wife  be  a,  feme  sole  at  all,  with  reference 
to  her  separate  property,  must  she  not  have  power  to  bind  her- 
self personally  ?  In  Stead  v.  Nelson  a  husband  and  wife  under- 
tonic,  for  valuable  consideration,  by  writing  under  their  hands, 


1   OweDS  V.  Dickenson,  Craig  &  Phil.  Tins.  &  Wife,  .104.     "Rut,  her  promissory 

note,  given   during   coverture  so  as  to 

■:    F  [  ol  mi-  >■  Tenant,  1    Bro.  C.  C.  16;  hind  her  separate  estate,  is  a  good  con- 

■  :i   '■    Aylett,   1    Mvl.  &  Or.  Ill;  sideration  for  another  promissory  noie, 

Macq.     Mns.    &     Wife,    .104;     1'eachev,  given   after   her   husband's   death   for  a 

Mar     '"'ill      278.      ]',nt.    see    Keogh    >'.  balance    then    due,  though   the   former 

Cathcart,  I  i    Ir.  Ch.  2*5.  note  he  barred  by  bhe  statute  of  limita- 

'■    Vaughan  V.  Vaiiderstefren,  2  Drew,  tions.      Latouche  r.  Latonche,  .'i  Hurl.  & 

1*4;  Peachey,  Mar    Settl.  273;  Macq.  Colt.  576. 
210 


CHAI\  X.]     DOMINION:    WIFE'S  EQUITABLE  PROPERTY.     §  134 

to  execute  a  mortage  of  her  separate  estate.  The  husband  died. 
Lord  Langdale  held  that  the  surviving  wife  was  bound  by  the 
agreement,  and  ordered  a  specific  performance.1  Certainly  the 
ground  of  this  decision  must  have  been  that  the  obligation  was 
not  upon  her  property  alone,  but  upon  her  person.  At  the 
same  time  it  is  readily  admitted  that  there  are  reasons  of 
policy  why  the  wife  should  be  exempted  from  personal  execu- 
tion during  coverture.  This  latter  view  accords  with  the  com- 
mon-law practice  in  analogous  cases.2  Perhaps,  then,  the  more 
consistent  view  of  the  subject  would  be  that  the  wife  incurs  a 
personal  obligation,  morally  and  legally,  on  such  contracts, 
express  or  implied,  as  she  may  make  during  coverture  with  ref- 
erence to  her  separate  property  ;  but  that  the  general  disabilities 
of  coverture  interpose  obstacles  to  the  enforcement  of  remedies 
by  a  creditor,  which  obstacles  the  courts  of  equity  feel  bound  to 
regard ;  and  hence  that  they  confine  the  remedies  to  her  separ- 
ate estate,  upon  the  faith  of  which,  it  may  reasonably  be 
presumed,  the  creditor  chose  to  rely.  And  this  conclusion  is 
that  preferred  on  the  whole  by  the  courts.3 

As  a  general  rule,  in  England,  it  became  settled,  therefore, 
that  wherever  a  married  woman,  having  property  settled  to  her 
separate  use,  entered  into  any  contract  by  which  it  clearly 
appeared  that  she  intended  to  create  a  debt  as  against  herself 
personally,  it  would  be  assumed  that  she  intended  that  the 
money  should  be  paid  out  of  the  only  property  by  which  she 
could  fulfil  the  engagement.4 

A  married  woman,  having  separate  estate,  without  a  clause 
restraining  her  right  of  disposition,  might  charge  and  encumber 
it  in  any  manner  she  chose,  either  as  security  for  her  husband's 
debts,  her  own,  or  those  of  a  stranger;  provided  she  did  not 
appear  to  have  been  imposed  upon  in  the  transaction.5     A  mar- 

1  2  Beav.  245;  Macq.  Hus.  &  Wife,  4  Earl  v.  Ferris,  19  Beav.  69. 

304.  5  Clerk  v.   Laurie,   2  Hurl.   &  Nor. 

2  Sparkes  v.  Bell,  8  B   &  C.  1.  199;    Peachey,    Mar.    Settl.    292.      See 

3  2  Perry,  Trusts,  §§  655-663  ;  Lewin,  Horner  v.  Wheelwright,  2  Jur.  n.  s.  367. 
Trusts,  5th  Eng.  ed.  542,  543.  The  doc-  The  same  rule  applied  in  the  United 
trine  of  equitable  appointment  seems  States.  See  post,  §  137;  Short  v.  Battle, 
to  he  exploded.  Lord  Justice  Turner  52  Ala.  456  ;  Armstrong  v.  Ross,  5  C.  E. 
in  Johnson  v.  Gallagher,  3  De  G.  F.  &  Green,  109. 

J.  494  ;  supra,  p.  209. 

211 


§  135  THE   DOMESTIC    RELATIONS.  [PART  II. 

ried  woman  might  bind  the  corpus  of  her  separate  property  by 
her  compromise  of  a  suit  which  she  had  instituted  by  her  next 
friend  1  She  might  also  contract  for  the  purchase  of  an  estate, 
and,  even  though  the  contract  made  no  reference  to  her  separate 
property,  it  was  bound  by  her  agreement.2 

§  135.  The  Same  Subject  ;  Latest  English  Doctrine.  —  But  in 
still  later  English  decisions  a  new  turn  —  and  that  towards  the 
better  protection  of  wives  having  separate  property  against  their 
own  imprudent  disposition  thereof — is  indicated,  which  we  may 
attribute  in  some  measure  to  the  legislative  changes  concerning 
married  women's  rights,  agitated  on  both  sides  of  the  ocean,  and 
the  influence  of  contemporaneous  American  ecpiity  decisions 
evoked  by  the  prior  legislation  of  our  respective  States  upon  the 
subject.  In  Johnson  v.  Gallagher,  decided  in  1861  by  the  Eng- 
lish Court  of  Appeal  in  Chancery,  the  court  checked  the  loose 
disposition  to  fastening  liabilities  of  a  married  woman,  no  matter 
how  improvidently  incurred,  upon  her  separate  estate,  on  the 
mere  faith  of  an  implied  engagement.3  It  would  still  appear 
that  in  England  a  married  woman  may,  upon  her  separate  credit, 
not  only  give  her  banker  a  lien  for  her  overdrafts,4  but  employ  a 
solicitor,  or  a  surveyor,  or  a  builder,  or  a  tradesman,  or  hire  labor- 
ers or  servants,  all  on  the  credit  or  for  the  immediate  benefit  of 
her  separate  property  ; 5  and  that  her  corporation  shares  are  lia- 
ble to  assessment.6  Where  a  married  woman  contracts  any  such 
debt  which  she  can  only  satisfy  out  of  her  separate  estate,  her 
separate  estate  will,  in  equity,  be  made  liable  to  the  debt.7 
Doubt  is  thrown,  however,  upon  the  extent  of  the  binding  force 
of  engagements  not  for  the  wife's  benefit ;  and,  on  the  whole, 
the  test  in  chancery  seems  to  be  settling,  at  the  present  day, 
towards  resardins:  whether   the  transaction  out  of  which  the 


1  Wilton  '•.  Hill,  25  L.  J.  Eq.  156.  4  London  Bank  of  Australia  v.  Lem- 

2  Dowling    v.    Maguire,     Lloyd    &  priere,  L.  R.  4  P.  C.  572,  594. 

Goold,  temp.  I'lnnkct,  I  ;  Crofts?;.  Mid-  5  See   Lord   Justice  .lames,  in  Lon- 

dleton,  2  Kay  &  .Johns.   l«.t4,  reversed  don   Bank  of  Australia  n.   Lempriere, 

on  :i|1|1«:il      And  see  Schouler,  litis.  &  supra;  Lord  Justice Turner,  in  Johnson 

Wife,  v.  Gallagher,  .'i  Do  G.  F.  &  J.  4!>4. 

:;  Johnson  v.  Gallagher,  3  De  <;.  F.         '  Matthewman'a  case,   L.   R.  3  Eq. 

&  J.  494.     And  gee  the  prior  English  7s7. 

ca  ■      erj   full}  cited  in  the  opinion  of         7  Picard  v.  Iline,  L.  It.  5  Ch.  App. 

Lord  Jual  ice  Turner.  274. 
212 


CHAP.  X.]     DOMINION  :    WIFE'S  EQUITABLE  PROPERTY.      §  136 

demand  arose  had  reference  to,  or  was  for  the  benefit  of,  the 
wife's  separate  estate ;  and,  on  the  whole,  unsatisfactory  as  may- 
be this  abstruse  discussion,  circumstances  are  likely  to  deter- 
mine the  decision  of  each  case,  with  perhaps  a  growing  partiality 
in  favor  of  a  married  woman's  rights,  and  a  growing  indisposition 
to  make  her  suffer.1 

§  13G.  Dominion  and  Liability  of  Wife's  Separate  Estate  ; 
American  Doctrine.  —  In  this  country,  whenever  the  wife's  sepa- 
rate use  has  been  admitted  as  a  doctrine  of  equity,  indepen- 
dently of  statute,  her  right  of  dominion  has  also  been  recognized. 
The  celebrated  New  York  case  of  Jaques  v.  Methodist  Episcopal 
Church,  which  may  justly  be  placed  foremost  among  the  very 
few  important  American  chancery  decisions  of  this  class,  estab- 
lished that  a  feme  covert,  with  respect  to  her  separate  estate,  and 
especially  her  personal  property,  was  to  be  regarded  in  equity 
as  a  feme  sole,  so  that  she  might  dispose  of  it  at  pleasure,  except 
so  far  as  expressly  denied  or  restrained  by  the  terms  of  the  in- 
strument which  created  the  trust.2  Numerous  American  cases 
also  rule,  conformably  with  English  precedents,  that  a  married 
woman  may,  by  her  contracts  or  engagements,  bind  her  separate 
property,  it  being  sufficient  that  there  was  an  intention  to 
charge  her  separate  estate ;  and  further,  that  by  contracting  a 
debt  during  coverture  she  furnishes  a  presumption  of  that  in- 
tention, since  otherwise  her  contract  must  have  been  worthless 
to  her  creditor.3     In  general,  however,  it  is  to  be  observed  that 

1  Equity    will     enforce     the    wife's  661.     As  to  a  judgment  debt  owing  to 

general   debts    only   against    so   much  her    see    24    Q.    B.    T).    103.     Statute 

of  the    separate   estate   to   which    the  changes  this.     [1891]  2  Q.  B.  422. 

wife   was   entitled,    free   from   any  re-  2  Jaques     v.     Methodist     Episcopal 

straint    on    anticipation,   at    the    time  Church,     17     Johns.    548;     Methodist 

when   the   engagements   were    entered  Episcopal   Church  v.  Jaques,   I   Johns, 

into,  and  so  much   as   remains  at  the  Ch.  450;  3  lb.   77;    140  N.  Y.  54  ;    2 

time   the  judgment   is  given;  and  not  Kent,  Com.  164;  McChesney  v.  Brown, 

against   separate   estate  to   which   she  25   Gratt.  393 ;    Patton  v.   Charlestown 

became  entitled  after  the  time  of  such  Bank,  12   W.  Va.  587;  Wells  v.  Thor- 

engagements,  nor  against  separate  es-  man,  37  Conn.  319;  Leaycraft  p.  Hed- 

tate  which  was  subject  to  a   restraint  den,  3  Green  Ch.  512;  Fears  v.  Brooks, 

on  anticipation.     Pike  v.  Fitzgibbon,  17  12  Ga.  200;  Bradford  v.  Greenway,  17 

Ch.  D.  454  ;  23  Ch.  D.  712  ;  30  Ch.  D.  Ala.  805 ;  Shipp  v.  Bowmar,  5  B.  Mon. 

169.     See  §110.     There  must  have  been  163;  Kirwin  v.  Weippert,  46  Mo.  532. 

some  separate  property  at  the  time  of  the  3  2  Kent,  Com.  164,  and  cases  cited' 

charge,  for  the  charge  to  take  effect  at  Schouler,  Hus.  &  Wife,  §  246. 
all.     Stogdon  v.   Lee,  [1891]    1   Q.  B. 

213 


§  133  THE   DOMESTIC    RELATIONS.  [PART  II. 

the  American  equity  doctrine  of  the  wife's  power  to  charge  her 
separate  estate,  independently  of  the  married  women's  acts,  has 
fluctuated  somewhat,  as  have  likewise  the  English  cases,  and 
that  not  only  do  American  courts  find  difficulty,  like  those  of 
England,  in  encountering  cases  where  the  liability  incurred  was 
disadvantageous  to  the  wife,  and  at  the  same  time  not  clearly 
charged  by  her  upon  her  separate  property  ,  but  this  further 
source  of  perplexity  appears  moreover,  namely,  that  local  legis- 
lation, in  these  later  years,  places  the  rights  of  married  women 
on  quite  a  novel  footing.  Some  States  favor  a  stricter  rule ;  in 
few  States,  indeed,  did  the  subject  receive  much  development 
prior  to  the  second  half  of  this  century  ;  while  the  policy  of  the 
married  women's  acts  themselves,  in  most  jurisdictions,  must 
be  opposed  to  making  such  legislation  disadvantageous  to  her 
interests.  Hence  a  course  of  precedents,  of  later  years,  hardly 
less  abstruse  and  irreconcilable  than  those  of  the  English 
chancery,  but  somewhat  independent  of  them.  This  doctrine 
may  better  be  studied  at  length  in  our  next  chapter,  in  connec- 
tion with  legislative  changes  affecting  the  wife's  right  of  dis- 
position in  this  country.  To  this  extent,  however,  American 
courts  occupy  sure  and  uniform  ground,  namely,  that  while  a 
married  woman  may  not  be  bound  personally  by  her  contract, 
the  rule  under  the  statutes  and  independently  of  them  *  is,  that 
when  services  are  rendered  her  by  her  procurement,  or  she  con- 
tracts a  debt  generally,  on  the  credit  and  for  the  benefit  of  her 
separate  estate,  there  is  an  implied  agreement  and  obligation 
springing  from  the  nature  of  the  consideration,  which  the  courts 
will  enforce  by  charging  the  amount  on  her  separate  property 
as  an  equitable  lien.2 

In  American   chancery  courts,  in  fact,  the-  charging  of    the 

1   Wilson  ».  Jones,  46  Md  349;  Coz-  money  of  her  separate  estate.     Turner 

zena    v.    Whitney,  3  R.   I.   79,    Harsh-  v.    Kelly,    70    Ala.   85;    39   Ark.   357; 

berger  t>.  Algier,  81  Gratt.  52.  Shuyder  v.  Noble,  94   Penn.   St.  286; 

'■'  Owen    v.  Cawley,  36  N.  Y.  600;  99  Penn.  St.  286.    The  Pennsylvania 

Ballin  v.   Dillaye,  37  N.  Y.  85;  Arm-  rule  is  stated  strictly  in  MacConnell  v. 

strongu.  Ross,  5  C.E.  Green,  109  ;  Bnck-  Lindsay,  131   Penn.  St.  476.  See  as  to 

ner   r.    Davis,   29    Ark.   444;    Dale  v.  a  vendor's  lien,  84  Ind.  594. 

Robinson,  51    Vt.  ^>;  Eliott  v.  Gower,  If  the  wife's  separate  estate  is  for 

12  l:.  I   "9;   18  Fla.  609.     And  ho,  too,  life,  she  may  charge  it  freely  for  that 

in  contracting  a  debt  for  the  purchase-  period.    76  Va.  207. 
214 


CHAP.  X.]    DOMINION  :    WIFE'S  EQUITABLE  PROPERTY.    §  136  a 

wife's  separate  estate  by  equity  proceedings  is  presented  with 
reference  sometimes  to  her  equitable,  and  sometimes  to  her 
statutory,  separate  estate.  In  some  States  the  complete  juris- 
diction of  trusts  for  separate  use  is  the  creature  of  recent  stat- 
ute;  l  in  others,  the  rule  is  deliberately  admitted,  in  chancery, 
to  differ  as  to  statutory  and  equitable  separate  estate ; 2  in 
others,  once  more,  chancery  seeks,  and  with  true  consistency, 
to  apply  one  and  the  same  principle  where  it  takes  jurisdiction 
of  separate  estate  at  all.  The  discrepancy  of  all  these  modern 
American  authorities  relates  chiefly,  (1)  to  determining  the  lia- 
bility of  the  wife's  equitable  or  statutory  separate  estate  for 
debts  and  engagements  not  beneficial  to  the  wife  herself,  or  to 
the  estate,  but  if  at  all,  for  her  husband's  or  a  stranger's  benefit; 
and  (2)  to  fixing  the  nature  of  the  evidence  of  intention  required 
for  such  charges.  The  equitable  rule  in  the  United  States,  more 
common  prior  to  the  married  women's  acts,  appears  to  have 
been,  that  the  wife's  separate  estate  would  be  held  liable  for  all 
debts  which  she.  by  implication  or  expressly,  by  writing  or  by 
parol,  charged  thereon,  even  if  not  contracted  directly  for  the 
benefit  of  the  estate.3  But  such  is  by  no  means  the  rule  to-day.4 
§  136  a.  Property  -with  Power  of  Appointment.  —  Property 
limited  to  such  uses  as  a  married  woman  shall  appoint  is  not 
separate  estate.  There  is  a  difference  between  property  subject 
merely  to  her  power  of  appointment  and  property  settled  to 
her  sole  and  separate  use.  In  the  former  instance  she  may 
dispose  of  the  estate  by  executing  an  instrument  according  to 
the  strict  letter  of  her  authority.  In  the  latter,  she  is  invested 
with    a  beneficial    interest   and  enjoyment,    however  restricted 


1  See  Hoar,  J.,  in  Willard  v.  East-  Tenn.  Or  on  her  bond.  36  W.  Va. 
ham,  15  Grav,  328.  "94.     But  only  such  separate  estate  as 

2  Musson  v.  Trigg,  51  Miss.  172;  she  had  at  the  time  of  the  engagement 
Robinson  v.  O'Neal,  56  Ala.  541  is  bound;  and  not  that  acquired  later. 

3  2  Kent,  Com.  164;  2  Story,  Eq.  Ankeny  v.  Hannon,  147  U.  S.  118. 
Juris.  §§  1398,  1401,  and  cases  cited;  Pickens  v.  Kniseley,  36  W.  Va.  794; 
Ballin   v.    Dillaye,   37  N.  Y.  35.     The  Crockett  v.  Doriot,  85  Va.  240. 

wife  may  bind  by  an  instrument  in  the  4  See  post,  §143;    Ankeny  v.  Han- 

nnture  of  a  covenant  to  stand  seized  to  non,    147  U.   S.   118.  a  recent   case  in 

the  use  of  another.     86  Ala.  168.     Or  which  Mr.  Justice  Field  traces  out  the 

by  expressly  charging  herscdf  a"  surety  English  doctrine, 
for  another.     Webster  v.  Helm,  [1894] 

215 


§  137  THE   DOMESTIC    RELATIONS.  [PART   II. 

may  be  the  dominion  allowed  her  by  the  donee.  A  married 
woman  may,  however,  be  expressly  authorized  to  appoint  by 
will  and  not  by  deed,  and  the  exercise  of  such  power  in  favor 
of  volunteers  may  render  the  appointed  funds  assets  for  the 
satisfaction  of  debts  properly  chargeable  against  her  separate 
estate.1  In  general,  equity  permits  a  married  woman  to  dispose 
of  property  according  to  the  mode,  if  any,  prescribed  by  the 
instrument  under  which  the  separate  use  is  created.2 

§  137.  "Wife's  Right  to  Bestow  upon  Husband,  Bind  for  his 
Debts,  &c.  — ■  A  married  woman,  save  so  far  as  she  is  restrained 
from  anticipation  by  the  terms  of  the  trust,  may  bestow  her 
separate  property  upon  her  husband  by  virtue  of  her  right  of 
disposal ;  although  at  common  law  no  such  thing  is  known  as 
a  gift  between  husband  and  wife.  She  may  likewise  transfer 
it  to  him  for  a  valuable  consideration.3  She  may  exempt  him 
from  the  payment  of  interest,  giving  him  the  income.4  But  acts 
of  this  sort  are  very  closely  scrutinized  ;  and  undue  influence  on 
the  part  of  the  husband,  or  the  fraud  of  both  husband  and  wife 
upon  creditors  of  either,  will  often  explain  the  motive  of  such 
transactions,  and  suffice  for  setting  them  aside  in  equity.5  The 
fact  that  the  husband  receives  the  capital  of  his  wife's  separate 
property  raises  the  inference,  not  of  a  beneficial  transfer  to  him, 
but  of  a  transfer  to  him  as  her  trustee.6  A  gift  to  him  requires 
clear  evidence,  such  as  acts  of  dominion,  or  the  use  of  the  prop- 
erty for  his  business  or  to  execute  his  marital  obligations.7 

So  may  the  wife,  unless  specially  restrained  by  the  trust,  and 
where  fraud  or  undue  influence  do  not  appear,  bind  her  equit- 
able separate  property  for  her  husband's  debts.8     It  is  also  well 

1  Re  Harvey,  28  W.  R.  73.  5  Pybus  >:  Smith,  1  Ves.  189. 

2  MeChesney   v.    Brown,   25    Gratt.  6  Rich  v.  Cockell,  9  Ves.  360;  Rich- 

Knowles    <•.    Knowles,   86  111.   1;  ardson  v.  Stodder,  100  Mass.  528. 
Jaques  v.  Methodist  Episcopal  Church,         '  Shirley  v.  Shirley,  9  Paige,  363; 

17  Johns.  548;  supra,%  L33;  Schouler,  Rowe  v.  Rowe,  12  Jur.  909.     See  Eur- 

IIus.  &  Wife,  S  -'17.     As  to  ;i  power  of  ther,  Schouler,  Has.  &  Wife,  §  248. 
sale  in  :i  mortgage  t"  her,  see  58  Md.         The   wile's  bond,  executed   t<>  her 

491.  hushand,    has    been    sustained    in    the 

'■'•  Lyn  v.  A  -  lit  on,  ]  l!n^-.  S    M.  190;  English  chancery.    Heathey  v.  Thomas, 

Macq.  Hub   &  Wife,  297;  2  Kent,  Com.  15  Ves.  596. 

ill;  Charles   <•.   Coker,  ^   8.  <'.  n.   s;         k  Schouler,  Hus.  &  Wife,  §§  249, 250 ; 

I.'';.  -2   Kent.  ( '.mi     111,  and   c:iscs  cited  :  2 

1  Gait  r.  Smith,  145  Penn.  St.  167.  V.  S.  Eq.  Dig.,  Hus.  &  Wife,  18;  Dal- 

216 


CHAP.  X.]      DOMINION  :    WIFE'S  EQUITABLE  PROPERTY.     §  137 

settled,  both  under  the  married  women's  acts  of  our  respective 
States,  and  independently  of  them,  that  a  married  woman  may- 
execute  a  mortgage  jointly  with  her  husband  to  secure  his  debts, 
in  which  case  she  is  to  be  regarded  as  his  surety ;  and  this 
applies  to  lands  held  in  her  right,  whether  conveyed  to  her 
separate  use  or  not,  provided  the  conveyance  be  executed  by 
husband  and  wife  jointly  after  the  usual  manner  of  such  instru- 
ments under  the  statute,  and  no  duress  was  imposed  upon  her.1 
But  if  the  transfer  does  not  follow  the  statute  form,  equity  will 
not  sustain  it.2  And  she  may  pledge  her  separate  personal 
property  as  security  in  like  manner.3  She  may  draw  drafts  as 
the  trustee  of  her  separate  property  by  way  of  binding  the 
property.4  And  her  separate  estate  will  be  bound  by  any  debt 
properly  contracted  by  her,  even  though  her  husband  should  be 
the  creditor.5  A  gift  or  conveyance  by  a  wife  to  her  husband, 
if  fraudulently  or  forcibly  procured  by  him,  will  be  set  aside  in 
equity  upon  her  representation  ;  so,  too,  where  it  was  intended 
for  his  security,  but  taken  out  as  absolute;6  but  if  the  rights 
of  a  buna  fide  purchaser  without  notice  of  the  fraud  or  force 
have  intervened,  her  own  rights  may  be  impeded  in  the  latter's 
favor.7 

lam  v.  Walpole,  Pet.  C.  C.  116  ;  Charles  Morgan,  60  Miss.  471.     Nor  will  she  be 

v.  Coker,  2  S.  C.  n.  s.  123.  charged  against  her  benefit  where  she 

1  Demarest  v.  Wynkoop,  3  Johns,  gives  no  valid  security  upon  such  prop- 
Ch.    129;    Yartie    v.    Underwood,    18  erty.     19  Fla.  275. 

Barb.  561  ;  Bartlett  i\  Bartlett,  4  Allen,  6  Stumpf   v.    Stumpf,    7    Mo.    App. 

440;    Short   v.   Battle,    52    Ala.   456;  272  ;  Fargo  r.  Goodspeed,  87  111.  290. 
Young  v.  Graff,  28  111.  20;  Watson  v.  7  OTIara  v.  Alexander,  56  Miss.  316. 

Thurber,  11  Mich.  457;  Schouler,  Hus.  For   English    rule   see   also    Schouler, 

&  Wife,  §  249  ;  32  Fla.  481 ;  58  N.  H.  Hus.  &  Wife,  §  249 ;  Dixon  v.   Dixon, 

490;  36  N.  J.  Eq.  48;  66  Ala.  476 ;  58  L.  R.  9  Ch.  D.  587. 
Conn.  542.  The  separate  property  acquired  by 

The  method  of  conveying  the  wife's  a    married   woman   after   judgment   is 

general  lands  under  our  modern  local  rendered  against  her  may  be  subjected 

statutes  is  shown  supra,  §§  94,  95.  to  payment  of  the  judgment.     60  Miss. 

2  See  e.  g.,  87  N.  C.  106.     Cf.  §  133.  870.  "  But  cf.  English  rule,  §  135. 

3  Witsell  v.  Charleston,  7  S.  C.  88 ;  A  promissory  note  executed  by  a 
Barrett  v.  Davis,  104  Mo.  549.  wife  and  husband  jointly  is  a  charge 

4  Bain  v.  Buff,  76  Va.  371.  on  the  wife's  equitable  separate  estate. 

5  Gardner  v.  Gardner,  7  Paige,  112.  McKenna  v.  Rowlett,  68  Ala.  186.  And 
She  cannot  charge  her  separate  estate  where  the  husband  makes  the  note  and 
by  a  deed  of  trust  executed  jointly  with  the  wife  indorses,  the  wife's  separate 
her  husband  to  indemnify  the  surety  on  estate  is  liable  accordingly.  19  W.  Va. 
a  recognizance  of  her  son.     Chandler  v.  366. 

217 


§  1G9  THE   DOMESTIC    RELATIONS.  [PART    II. 

§  138.  Concurrence  of  Wife's  Trustee,  ■whether  Essential. — 
Consistently  with  the  wife's  right  of  dominion  over  her  separate 
estate,  the  rule,  both  in  English  and  American  chancery  courts, 
is,  that  the  concurrence  of  the  trustee  of  the  fund  is  not  essen- 
tial to  the  validity  of  her  disposition  thereof.1  On  the  contrary, 
if  she  has  the  absolute  beneficial  enjoyment  of  the  fund  by  the 
terms  of  the  trust  (there  being  no  clause  in  restriction  of  her 
power),  or  in  such  manner,  if  it  be  real  estate,  that  the  statute  of 
uses  would  execute  the  title  or  use  in  her,  she  can  compel  the 
trustees  to  make  immediate  conveyance  or  transfer  to  her  of  the 
trust  fund,  and  if  they  refuse  they  are  liable  to  costs.2  Even  if 
the  gift  be  to  her  husband  or  for  his  benefit,  the  trustee  must 
transfer  and  give  legal  effect  to  the  alienation,  as  in  other  in- 
stances of  disposition  on  her  part ;  reserving,  of  course,  the  right 
to  show  bad  faith  or  undue  influence  affecting  the  validity  of 
the  transfer  or  conveyance,  and  so  defeating  it.3 

But  if,  on  the  other  hand,  the  instrument  requires  the  written 
approval  of  the  trustee  expressed  in  a  certain  manner,  that  re- 
quirement must  be  complied  with  to  make  even  the  joint  con- 
veyance of  husband  ami  wife  effectual;4  and  it  is  incumbent  on 
every  trustee  to  see  that  all  restrictions  on  the  wife's  dominion 
over  the  fund  are  duly  respected.5  It  is  no  fraud  upon  marital 
rights  if  the  wife  has  the  title  of  her  separate  property  vested  in 
a  third  person  as  trustee  for  the  purpose  of  placing  it  out  of  her 
husband's  control.6 

§  139.  Whether  Wife  must  be  specially  restrained  under  the 
Trust.  —  In  absence  of  all  technical  clauses,  our  general  rule  is 

1  Essex  v.  Atkins,  14  Ves.  542;  Cor-  8  Essex  v.  Atkins,  14  Ves.  542;  Mar 
gell  u.  Dunton,  7  Penn.  St.  532 ;  Jaques  rick  v.  Grice,  3  Nev.  52;  Standford 
v.  Methodist  Episcopal  Church,  17  v.  Marshall,  2  Atk.  69;  Knowles  i\ 
Julms.  548.  Knowles,  86  111.  1. 

2  Clerk  v.  Laurie,  2  Hurl.  &  Nor.  4  Gelston  v.  Frazier,  26  Md.  320. 
I  ■  Peachey,  Mar.  Settl.  292;  Schou-  Trustee's  asseut  held  indispensable  in 
ler,    Hus.    &    Wife,   §   250;    Taylor   v.  81  Va.  380. 

Glanville,  3  Madd.  179 j  North  Ameri-         »  Hopkins  v.  Myall,  2  R.  &  M.  86; 

can  Coal  Co.  v.  Dyett,  7  Paige,  1  ;  Gib-  McClintic  v.  Ochiltree,  4  W.  Va.  249. 

Walker,  20  X.  Y.   476.     And  see  See    Horner   v.    Wheelwright,    2    Jar. 

o.  Harris,  4  Met.  (Ky.)  853.     But  n.    s.  367;    Frostburg    Association    v. 

Noyes  v.   Blakeman,  2  Seld.  567;  Hamill,  55  Md.  313. 
.   Sandf.   531,  as  to  the  effect  of         °  Kirkpatrick  v.  Clark,  132  111.  342. 
New  York  statute   relative  to  the  decla- 
ration of  trusts. 

218 


CHAP.  X.]     DOMINION  :    WIFE'S  EQUITABLE  PROPERTY.     §  140 

that  the  wife,  unless  specially  restrained  by  the  terms  of  the 
trust  under  which  she  acquired  her  equitable  separate  property, 
may  dispose  of  it  at  pleasure.  Jaques  v.  Methodist  Episcopal 
Church  went  so  far  as  to  rule  that,  though  a  particular  mode  of 
disposition  be  specifically  pointed  out  in  the  instrument,  this 
will  not  preclude  the  wife  from  adopting  any  other  mode  of  dis- 
position, unless  she  has  been,  by  express  language  of  the  trust, 
specially  restrained  to  that  particular  mode.1  In  this  latter 
doctrine  Chancellor  Kent  (whose  judgment  in  the  lower  court 
had  been  reversed2)  did  not  concur,  —  adopting  the  more  con- 
servative view  with  reference  to  such  restrictions.  The  distinc- 
tion is  rather  a  nice  one,  and  successive  American  decisions  in 
other  States  have  generally  sustained  the  Chancellor's  views, 
which  seem  indeed  most  consonant  to  reason  and  the  intent  of 
such  trusts ;  but  the  cases  are,  on  the  whole,  conflicting,  and  not 
very  conclusive.3  Both  English  and  American  precedents  agree 
in  the  converse  principle,  that  if,  by  the  terms  of  the  trust,  the 
wife  is  expressly  restrained  to  a  particular  mode  of  dealing  with 
the  separate  fund,  she  cannot,  even  by  proceedings  iu  equity,  be 
enabled  to  pursue  any  other  inconsistent  mode.4 

§  140.  Wife's  Participation  in  Breach  of  Trust  with  Husband 
or  Trustee. — The  separate  estate  of  married  women  may  be 
affected,  and  their  rights  barred,  by  active  participation  in 
breaches  of  trust,5  But  on  the  other  hand,  to  preclude  the  wife 
from  the  right  to  relief  simply  because  she  has  improperly  per- 
mitted her  husband  to  receive  the  trust  funds,  would  be  to  de- 

1  Jaques  v.  Methodist  Episcopal  Gray,  328,  appears  to  have  misappre- 
Church,  17  Johns  548;  Methodist  bended  this  point.  See  Schouler,  Hus. 
Episcopal  Church  v.  Jaques,  1  Johns.     &  Wife,  §  251. 

Ch.  450 ;  3  lb.  77.  3  See  Tullett  v.  Armstrong,  1  Beav. 

2  3  Johns.  Ch.  77.  The  point  con-  1,  at  length,  for  the  English  doctrine, 
tended  for  by  the  Chancellor,  but  dis-  For  American  authorities,  see  2  Kent, 
approved  on  appeal,  was,  that  if  a  wife  Com.  165,  166,  and  cases  cited  in  last 
has  power  expressly  conferred  to  dis-  edition.  Also  Schouler,  Hus.  &  Wife, 
pose  by  deed  in  concurrence  with  her  §  252. 

husband,   or   by   will   without    it,    her  4  Ross  v.  Ewer,  2   Atk.   156;  Schou- 

receipt  "alone  "  to  be  a  sufficient  dis-  ler,  Hus.  &  Wife,  §§  237,  238,  247.  252. 
charge  as  to  rents,  issues,  and  profits ;  5  Peachey,  Mar.  Settl.  270;    Ryder 

the  wife   cannot  appoint  by   deed,   or  v.   Bickerton,   3   Swanst.  80,  n.  ;  Lord 

charge  the  property  by  her  sole  bond,  Montford    v.   Lord   Cadogan,    19    Ves. 

note,  parol  promise,  &c.  635. 
Hoar,  J.,  in  Willard  v.  Eastham,  15 

219 


§  141  THE   DOMESTIC    RELATIONS  [PART   II. 

feat  the  very  purpose  for  which  the  trust  was  created,  —  namely, 
the  protection  of  the  wife  against  her  husband.  Hence,  accord- 
ing to  the  latest  and  best  authorities,  the  court  must  be  satisfied 
that  the  husband  has  not  in  any  degree  influenced  her  acts  and 
conduct,  before  it  holds  her  separate  estate  to  be  affected ;  and 
this,  upon  the  most  jealous  investigation.1 

Where  her  husband  and  the  trustee  of  the  fund,  by  way  of 
fraudulent  collusion  to  deprive  her  of  her  property,  make  an  im- 
proper transfer  thereof  out  of  her  separate  use,  her  assent  will 
not  be  readily  presumed  to  the  transaction  from  circumstances, 
while  she  remained  in  ignorance  of  it.2 

§  141.  Income  to  Husband  ;  One  Year's  Arrears.  By  the  or- 
dinary rule  of  the  English  chancery  courts  a  wife  is  precluded 
from  recovering  the  arrears  of  income  on  her  separate  estate  for 
more  than  a  year,  upon  the  ground  of  a  supposed  gift  to  her  hus- 
band.3 As  to  whether  one  year's  income  can  be  recovered  or 
not  there  is  much  discrepancy  in  the  English  cases;  but  the 
better  opinion,  even  here,  is  that  the  husband  has  been  allowed 
by  the  wife  presumably  to  receive  and  appropriate  her  income 
fiom  year  to  year,  unless,  by  a  consistent  course  of  dissent,  the 
wife,  on  her  part,  rebuts  such  presumption,  in  which  case  her 
will  must  be  respected.  If  the  wife  is  insane  and  incapable  of 
assenting,  or  the  income  has  not  actually  come  to  her  husband's 
hands, 'and  under  the  trust,  moreover,  the  income  is  not  payable 
to  the  husband,  the  income  will  belong  to  her ;  though  here  the 
inclination  of  equity  is  to  allow  all  reasonable  offsets  to  the 
husband.4 

1   Per  Sir  George  Turner,  Hughes  v.  s  Peachey,  Mar.  Settl.  291,  and  cases 

Wells,  9  Hare,  773.     And  see  authori-  cited ;    Rowley    v.    Unwin,   2    Kay   & 

ties    cited,    Schouler,    Hus.    &    Wife,  Johns.   142;  Arthur  v.  Arthur,   11  Ir. 

§  254  ;  Carpenter  v.  Carpenter,  27  N.J.  Ch.  513. 

Eq.   502;    Clive   v.    Carew,    1  John.  &  4  Lewin,     Trusts,    550;      2    Perry, 

Ben.  L99.  Trusts,  §  665,  and  cases  cited. 

-   Dixon  v.  Dixon,  L.  R.  9  Ch.   D. 
587. 

220 


CHAP.  XI.]    DOMINION  :    WIFE  S  STATUTORY  PROPERTY.    §  143 

CHAPTER   XL 

THE  WIFE'S  DOMINION  OVER  HER   STATUTORY   SEPARATE    PROPERTY. 

§  142.      Dominion  under  Married  Women's  Acts  in  General.  — 

The  doctrine  of  the  wife's  dominion  over  her  separate  estate  is 
at  this  day  more  generally  asserted,  in  the  United  States  at 
least,  with  reference  to  the  married  women's  acts ;  and  some  of 
the  later  cases  show  important  variations  from  the  equity  rule, 
as  we  shall  proceed  to  notice.  The  decided  change  seems  to 
date,  in  American  chancery,  from  the  passage  of  the  important 
married  women's  acts,  or  about  1848,  and  in  most  States  at  this 
day  to  affect  equitable  remedies  with  reference  to  both  the  stat- 
utory and  equitable  separate  estate  of  the  wife.1 

§  143.  New  York  Rule  as  to  Wife's  Charge  not  Beneficial.  — 
The  obstinate  case  of  Yale  v.  Dalerer  is  an  important  one,  as  es- 
tablishing in  a  leading  American  State,  under  cover  of  modern 
legislative  policy,  a  new  doctrine,  at  variance  with  that  of  con- 
temporary English  equity  courts  noted  in  our  last  chapter,2  and 
apparently  contrary  to  its  own  precedents.3  In  this  case  the 
New  York  Statutes  of  1848  and  1849  were  to  be  construed, 
which  in  terms  permitted  the  wife  to  hold  to  separate  use,  and 
to  "  convey  amd  devise  "  as  if  sole,  but  left  her  promissory  note 
as  void  as  it  always  had  been  at  the  common  law.4     A  question 

1  Supra,  §  134.  was  not  able  to  pay  it,  she  was.     The 

2  Supra,  §  134.  Cf.  §  135.  And  see  husband  turned  out  insolvent  after- 
also  §§  136,  137.  wards,  and  judgment  on  the  note  was 

3  Yale  v.  Dederer,  18  N.  Y.  265 ;  returned  ?iulla  buna  as  against  him. 
s.  c.  22  N.  Y.  450.  It   was   established  that  the  wife  had 

4  It  appeared  that  the  husband  had  sufficient  real  estate,  held  iu  her  own 
offered  his  promissory  note  to  the  plain-  right,  to  satisfy  the  claim;  and  the 
tiff  in  payment  for  certain  cows  which  judge,  who  heard  the  evidence,  stated 
he  wished  to  purchase  ;  that  the  plain-  in  his  finding  that  "the  defendant,  Mrs. 
tiff,  doubting  his  solvency,  required  Dederer,  intended  to  charge,  and  did 
him  to  procure  his  wife  to  unite  in  a  expressly  charge,  her  separate  estate 
note  with  him.  This  he  did.  The  for  the  payment  of  the  note."  The 
note  was  subsequently  renewed.  At  Court  of  Appeals  nevertheless  held 
the  time  of  signing  the  note  Mrs.  that  Mrs.  Dederer  was  a  mere  surety 
Dederer  remarked  that  if  her  husband  for  her  husband ;  and  that  being  such, 

221 


§  143  THE   DOMESTIC    RELATIONS.  [PART   II. 

•properly  raised  was  whether,  notwithstanding  her  legal  disabili- 
ties to  contract  remained  substantially  as  before  the  statute,  the 
married  woman  might,  as  incidental  to  the  complete  right  of 
property  and  jus  dispoiicndi  which  she  took  under  the  statute, 
charge  her  estate  for  the  purposes  and  to  the  extent  which  rules 
of  equity  had  heretofore  sanctioned  with  reference  to  her  equi- 
table separate  estate.  The  decision  was  adverse,  and  the  prin- 
ciple of  the  decision  was  this  :  that,  in  order  to  create  a  charge 
upon  the  separate  estate  of  a  married  woman,  as  for  instance  by 
joining  her  husband  in  giving  a  promissory  note,  the  intention 
to  do  so  must  be  declared  in  the  very  contract  which  is  the 
foundation  of  the  charge,  or  else  the  consideration  must  be 
obtained  for  the  direct  benefit  of  the  estate  itself.  Later  New 
York  decisions  follow  the  rule  of  this  case,  and  require  a 
distinct  written  obligation  to  bind  the  wife  where  the  debt  is 
not  contracted  for  the  direct  benefit  of  the  estate.1 

The  decision  in  Yak  v.  Dcdcrcr,  on  its  second  appeal,  made  a 
profound  impression  among  chancery  jurists,  the  novelty  of  the 
married  women's  act  favoring  this  result,  and  likewise  the  cir- 
cumstance that  chancery  jurisdiction  had  hitherto  been  taken 
more  liberally  in  New  York  than  in  other  States  in  the  Union. 
Opinions  differed  as  to  the  merits  of  the  decision,  but  not  as  to 
the  bolduess  of  the  innovation  upon  chancery  precedents.  It 
does  not  appear  that  this  doctrine  has  found  favor  in  all  the 
other  States.  In  Wisconsin,  the  decision  of  Yale  v.  Dederer 
was  unsparingly  condemned  soon  after,  in  the  course  of  judicial 

although  it  was  her  intention  to  charge  for  protection  in  their  separate  estate. 

her  separate  estate,  such  intention  did  A  third  time  (see  68  N.  Y.  329),  or  about 

no!  take  effect.     We  may  add  that  Yale  1877,  the  case  went  up  on  appeal :  the 

v.  1  ><■  lerer  was  passed  upon  by  the  New  effort  upon  the  last  trial  being  made  to 

Fork    Court  of  Appeals  three  several  take   the  case  out  of  the  rule  by  evi- 

tiraes.     After  the  first  appeal,  18  X.  Y.  deuce,  but  it  was  held  that  the  findings 

265,  the  '',,1111    below,  which   would  at  as  to  the  circumstances  and  intent  were 

firsi    have   entered    judgment    to  sell,  nol  inconsistent  with  the  idea  that  the 

found   that  the   wife   actually  intended  defendant  had  signed  as  surety. 

her  separate  estate  with  the  '  White  v.  McNett,  .'>.'!  X.  Y.  371  ; 

prom  is  on     note    in    question.      Hence  Ledlie    v.    Vrooman,    41     Barb.     10!); 

the  principli    so  broadly  asserted  as  to  White  ?•.  Story,  4:1    Barb.   124;    Mer- 

in   writing  on  the  second  ap-  chants'   Bank  v.   Scott,  59  Barb.   641; 

p.    I    1  ■■    V   Y     i.'.oi;    SeMen,  J.,  ob-  Saratoga  Co.   Hank  v.  Pruyn,  90  X.  V. 

ng  that  hereafter  married  women  2"><>.     And  see  101  \.  Y".  484,  where  the 

were  not  to  in-  indebted  to  equity  merely  wife  hail  no  separate  estate. 


CHAP.  XI.]     DOMINION:  WIFE'S  STATUTORY  PROPERTY.    §  143 

discussion.1  And  for  several  years  the  more  common  equitable 
rule  in  this  country  still  seemed  to  be  that  the  wile's  separate 
estate  would  be  held  liable  for  all  debts  which  she  by  implica- 
tion or  expressly,  by  writing  or  parol,  charged  thereon,  even  if 
not  contracted  directly  for  the  benefit  of  the  estate.2  Fur  the 
wife's  debts  are  charged  in  justice  upon  her  separate  estate,  not 
because  of  her  power  to  make  a  valid  written  or  verbal  contract, 
but  because  it  is  right  that  her  debts  should  be  paid.3 

But  influences  were  at  work  to  bring  other  jurisdictions  to 
reject  the  loose  discretionary  powers  which  English  precedents 
appeared  to  have  established  against,  as  well  as  favorably  to, 
the  interests  of  married  women.  In  Massachusetts,  at  a  term 
of  1860,  the  Supreme  Court,  called  for  the  first  time  to  exercise 
full  equity  powers  under  a  statute  then  recent,  followed  the 
rule  of  Yale  v.  Dederer,  in  a  similar  case  of  married  women's 
suretyship.4  The  English  chancery  itself,  finding  occasion  in 
1861  to  consider  the  subject  of  separate  estate  liability  for  a 
wife's  unbeneficial  dealings,5  showed  a  new  inclination  to  dis- 
criminate for  the  protection  of  a  wife's  separate  estate  in  such 
instances.  On  the  whole,  therefore,  while  the  lines  of  American 
and  English  decisions  of  late  do  not  run  parallel,  and  States 
themselves  are  discordant  as  to  burden  of  proof  and  as  to  ad- 
mitting or  denying  the  New  York  and  Massachusetts  doctrine, 
—  some  States  holding  it  immaterial  in  equity  whether  the 
wife's  debt  be  evidenced  by  a  written  instrument  or  parol 
promise,6 — the  tendency  on  both  sides  of  the  water  is  towards 

1  Todd  v.  Lee,  15  Wis.  365.  v.  Warwick,  40  Penn.  St.  140.     But  see 


2  Pentz  v.  Simonson,  2  Beasl.  232 
Grapengether  v.  Fejervary,  9  Iowa 
163;  Rogers  v.  Ward,  8  Allen,  387 
Mayo  v.  Hutchinson,  57  Me.  546 ;  Ma 
jor  v.  Symmes,  19  Ind.  117  ;  Oakley  v 
Pound,  1  McCart.  178;  Miller  v.  New 
ton,  23  Cal.  554;    2  Kent,  Com.  164 


Maclay  v.  Love,  25  Cal.  367  ;  Hanly  v. 
Downing,  4  Met.  (Ky.)  95. 

4  Willard  v.  Eastham,  15  Gray,  328. 
The  volume  of  Reports  containing  this 
opinion  was  not,  however,  published 
before  1869.  Some  of  the  most  recent 
statutes   embodv   this  New  York  rule 


2  Story,  Eq.  Juris.  §§  1398,  1401.     See  requiring  the  wife's  express  declaration 

Koontz  v.  Nabb,  16  Md.  549  ;  Knox  v.  of  intent  to  bind,  &c.     39  S.  C.  525. 
Jordan,  5   Jones   Eq.    175;    McFaddin  5  That  is,  for  buying  stock  in  trade 

v.  Crumpler,  20  Tex.  374  ;  Phillips  i\  for   her   separate  business.     This  case 

Graves,  20  Ohio  St.  371  ;  Avery  v.  Yan-  was  Johnson  v.  Gallagher,  3  De  G.  F. 

sickle,  35  Ohio  St.  270  ;  §§  136,  137.  &  J.  494  ;  supra,  §  135. 

3  Cummins  v.  Sharpe,  21    Ind.  331  ;  6  Miller  v.  Brown,  47  Mo.  505. 

Pentz  v.  Simonsou,  2  Beasl.  232 ;  Glass 

223 


§m 


THE    DOMESTIC    RELATIONS. 


[PART    II. 


tlie  conclusion  that  the  debts  of  a  married  woman  having  sepa- 
rate property  are  only  to  be  surely  charged  by  a  court  of  equity 
upon  that  separate  property,  and  payment  enforced  out  of  it, 
when  it  was  contracted  by  her  for  its  benefit,  or  expressly  made 
a  charge  thereon  or  expressly  contracted  on  its  credit ; *  and,  of 
course,  to  the  extent  only  to  which  the  wife's  power  of  disposal 
may  go.2  And,  to  suit  a  later  phase  of  the  doctrine,  not  upon 
separate  property  which  at  the  date  of  her  engagement  had  no 
existence  and  was  not  contemplated.3 

§  144.  Combined  Tests;  Benefit  and  Express  Intention.  —  The 
equitable  rule  in  which  American  cases,  together  with  the  latest 
English  cases,4  generally  agree,  whether  with  reference  to  the 
equitable  or  statutory  separate  property  of  the  wife,  is,  that  the 
separate  estate  of  a  married  woman  becomes  chargeable  with 
the  due  performance  of  her  engagements  or  obligations  made  or 


1  See  supra,  §  135;  Armstrong  v. 
Ross,  5  C.  E.  Green,  109;  Kautrowitz 
v.  Prather,  31  Ind.  92;  Hasheagau  v. 
Specker,  36  Ind.  413;  Perkins  v.  Elliott, 
7  C.  E.  Green,  127;  Patrick  v.  Littell, 
36  Ohio  St.  79,  and  authorities  cited; 
Westgate  v.  Munroe,  100  Mass.  227; 
Nash  v.  Mitchell,  71  N.  Y.  199;  Wilson 
v.  Jones,  46  Md.  349 ;  Wallace  v.  Fin- 
berg,  46  Tex.  35  ;  Williams  i\  Hngunin, 
6!)  111.  214  ;  Stilhvell  v.  Adams,  29  Ark. 
346;  Pippen  v.  Wesson,  74  N.  C.  437; 
58  Vt  474  ;  44  Mich.  80,  96. 

The  doctrine  of  Yale  v.  Dederer, 
whether  by  statute  or  judicial  decision, 
finds  more  direct  support  from  Cozzeus 
/•.  Whitney,  3  H.  I.  79;  Jones  r.  Cros- 
thwaite,  17  Iowa,  393;  Perkins  v. 
Elliott,  7  C  V..  Green,  127;  Hudson 
V.  Davis,  43  Ind.  258;  Chatterton  v. 
Young,  2  Tenn.  Ch.  768;  Nelson  v. 
Miller,  52  Miss.  no.  But  other  cases 
ar<-  to  tin'  contrary.  Metropolitan 
Hank  v.  Taylor,  62  Mo.  338;  Mayo  v. 
Hutchinson,  57  Me.  546;  supra,  p.  228. 
lie  i-  regarded  as  Battled  in  New 
York,  that,  in  order  to  charge  the  es- 
tati  'i  a  married  woman  with  a  debt 
doI  contracted  for  the  benefit  of  her 
separate  estate,  the  intent  to  charge 
such  estate,  where  the  obligation  is  in 
224 


writing,  must  be  expressed  in  the  in- 
strument. Yale  v.  Dederer,  68  N.  Y. 
329  ;  cases  supra. 

2  See  Hix  v.  Gosling,  1  Lea,  560. 
For  numerous  applications  of  this  new 
rule,  see  Schouler,  Hus.  &  Wife,  §  258, 
and  cases  cited. 

3  Ankeny  v.  Hannon,  147  U.  S.  118; 
§§  135,  136;  106  N.  C.  289.  The  very 
recent  emancipation  of  married  women 
by  legislative  acts  does  not  remove 
them  from  the  consideration  of  the 
courts  when  questions  of  improvidence, 
hardship,  and  oppression  in  their  con- 
tracts require  judicial  attention.  Friend 
r.  Lamb,  152  Penn.  St.  529.  A  late 
Fnglish  statute  fastens  liability  upon  the 
wife's  after-acquired  property.  [1891] 
2  Q.  B.  422.  Where  the  debt  was  con- 
tracted upon  the  express  faith  of  a  leg- 
acy fairly  expectant,  the  creditor  was 
favored  in  Renz  A'e,  79  Mich.  216,  a 
case  with  peculiar  considerations  of 
benefit  to  the  wife. 

The  wife's  promise  to  pay  another's 
debt  (even  that  of  her  husband)  may 
require  a  writing  under  the  Statute  of 
Frauds.  White  v.  Vassalborough,  82 
Me.  65;  §  145. 

*  Supra,  §  135. 


CHAP.  XI.]  DOMINION:  WIFE'S  STATUTORY  PROPERTY.  §  144  a 


incurred  upon  its  express  credit  or  for  its  benefit.1  Benefit  is 
not  the  sole  test ;  but,  to  the  extent  of  her  power  of  disposition 
over  her  separate  estate,  the  wife  may  charge  it  with  such  en- 
gagements as  she  sees  fit  to  make,  provided  the  evidence  of 
intention  be  satisfactory  (upon  which  point  States  differ),  and 
provided,  of  course,  that  the  transaction  was  voluntary  on  her 
part,  and  not  fraudulently  procured. 

In  order  to  charge  the  separate  estate  of  a  married  woman 
with  a  debt,  as  the  cases  now  to  be  examined  will  show, 
a  specific  agreemeut  to  that  effect  is  not  always  held  indis- 
pensable ;  but  the  intent,  or  the  creditor's  right  to  procure 
such  charge,  may  be  inferred  often  from  the  surrounding 
circumstances.2 

§  144  a.  Wife's  Separate  Property  bound  for  Family  Neces- 
saries, &c.  —  Various  State  codes  now  render  a  wife's  separate 
property  expressly  liable  for  family  necessaries  and  articles  for 
the  support  of  the  household  as  well  as  her  own  comfort,  where- 
ever  at  least  the  sale  was  made  on  the  faith  of  such  property  or 
upon  her  credit;3  and  the  liability  thus  indicated  is  sometimes 


1  Patrick  r.  Littell,  36  Ohio  St.  79. 

2  Conlin  c.  Cantrell,  64  N.  Y.  217; 
Harshberger  *•.  Alger,  31  Gratt.  52. 

3  Tiemayer  v.  Turnquist,  85  N.  Y. 
516  ;  66  Ala.  315  ;  68  Ala.  402  ;  Wright 
v.  Strau-s,  73  Ala.  227  ;  Marquardt  v. 
Flaugher,  60  Iowa,  148  ;  lb.  86.  To 
constitute  such  family  expense,  the 
article  must  have  been  actually  used 
in  the  family.  55  Iowa.  702.  And  see 
79  Ky.  279.  A  joint  purchase  of 
necessaries  by  husband  and  wife  is 
presumed  to  be  on  the  husband's  sole 
credit.  103  Penn.  St.  396.  But  where 
the  husband  was  known  to  be  insol- 
vent, reliance  is  placed  rather  upon  the 
wife's  property.     70  Ala.  522. 

It  should  be  borne  in  mind  that 
apart  from  such  statutes,  neither  the 
liability  for  provisions  supplied  at  a 
dwelling-house  where  a  husband  and 
wife  and  their  children  are  living  to- 
gether, nor  a  promissory  note  given  by 
the  husband,  which  describes  him  as 
trustee  for  the  wife,  in  payment  for 
such  supplies,  can  be  charged  in  equity 
15 


upon  the  wife's  separate  estate,  without 
clear  proof  that  she  contracted  the  debt 
on  her  own  behalf,  or  intended  to  bind 
her  separate  estate  for  its  payment. 
1  )odge  v.  Knowles,  1 14  U.  S.  430  ;  §  128. 
And  see  Hart  v.  Goldsmith,  51  Conn. 
479. 

For  the  wife's  own  wearing  apparel 
she  may  give  her  binding  note.  103 
Ind.  512.  Medical  services  rendered  to 
a  wife  are  family  expenses  or  uecessaries 
under  such  a  code.  80  Iowa,  243. 
Otherwise  as  to  medical  services  to  her 
husband,  where  the  code  is  not  explicit. 
75  Mich.  397.  And  so  is  a  suit  of 
clothes  purchased  by  the  wife  for  a 
minor  son.  79  Mich.  360;  83  Mich. 
116.  But  not  rent  of  a  farm  which  the 
husband  carries  on  as  a  business  enter- 
prise. 82  Iowa,  596 ;  though  as  to 
rent  for  a  family  home,  see  37  111.  App. 
30.  Nor  does  feed  to  the  wife's  horses 
which  the  husband  used  in  his  busi- 
ness, come  under  the  rule.  82  Me.  65. 
Formalities  as  to  suit,  &c,  guarding  the 
wife's  interest  must  follow  the  statute. 

225 


§  145  THE   DOMESTIC    RELATIONS.  [PART   II. 

her  own,  though  more  naturally  that  of  the  husband  or  of  both 
husband  and  wife ;  while  in  some  States  the  wife  stands  like  a 
surety  for  her  husband.1  Such  codes  are  to  be  fairly  and  reason- 
ably construed  with  reference  to  a  wife's  obligaiion,  for  they  are 
in  derogation  of  the  common  law  and  equity.2 

§  145.  Whether  Wife  may  bind  as  Surety  or  Guarantor.  — 
Where  a  married  woman  having  separate  estate  contempora- 
neously executes  a  promissory  note  as  surety  for  another  (inclu- 
sive of  her  husband),  such  estate  is  (or  was  lately)  presumably 
charged  with  its  payment  in  Ohio,3  Maine,  Missouri,  and  some 
other  States.  But  the  rule,  as  we  have  seen,  is  (or  was  lately) 
otherwise  in  New  York  and  Massachusetts  and  New  Jersey,  and 
the  same  may  be  said  as  to  New  Hampshire,  Georgia,  South 
Carolina,  Tennessee,  Nebraska,  and  various  other  States.  In 
Louisiana  a  married  woman  may  bind  herself  as  surety  for  any 
one  except  her  husband.4  In  some  States  a  wife  cannot  make 
herself  liable  on  her  contract  of  suretyship  for  any  one,5  even 
where  she  may  enter  into  an  original  undertaking.6 

A  married  woman's  promissory  note  does  not,  as  a  rule,  se- 
cure her  husband's  debts,  nor  does  she,  by  executing  it,  bind  her- 
self lawfully  as  his  surety  or  guarantor  on  a  contract  not  relating 
to  her  separate  estate,  nor  for  its  benefit,  so  as  to  render  herself 
liable  to  suit.7  The  same  may  be  said,  though  perhaps  with 
more  reserve,  of  her  undertakings  for  the  benefit  of  third  parties ; 
as  a  mere  accommodation  indorser,  for  instance  ; 8  or  to  pay  in- 

19  Ore.   233;  Gabriel  v.  Bowman,  104  distinction  between    her  equitable  and 

Mo.  44  ;  Edwards  v.  Woods,  131   N.  Y.  statutory  property  in  such  matters.     86 

350.     Especially  is   the  wife  liable  as  Ala.  168.    Accommodation  acceptance  is 

above  when:  she  herself  purchases  and  within  the  "  surety  "  restriction  of  stat- 

agrees  to  pay  ;   but  where  the  husband  ute.     86  Ga.  780. 
purchases   for  himself  and  on  liis  own  6  87  Ga  393. 

credit,  the  local  statute  may  not  suffi-  7  Parker  v.  Simonds,  1    Allen,  258; 

ciently  charge  her  by  its  language.    86  Shannon  v.  Canney,  44  N.  H.  592,  and 

Ga   696;  92  Ga.  769.  numerous  cases  cited  in  Schouler,  Ilus. 

1  36  Neb.  604.  &  Wife,  §  260. 

-  See  §§  r.r,,  109,  128.  8  Shannon  v.  Canney,  44  N.  II.  592; 

■  Semble  a  conclusive  presumption.  Crane  v.  Kclley,  7  Allen,  250;  Kohn  v. 

.",'i  Ohio  St.  516.     lint  ser.  Ankeny  v.  Russell,  91    111.  138;  Bailey??.  Pearson, 

Hannon,  supra.  9  Post.   77;  Lytle's  Appeal,  36  Penn. 

«  Sri, ,,u]er.  Ilus.  &   Wife,  §260,  and  St.    131;   I'eake    r.    La    Baw,    6    C.    E. 

ca-e-  .lie. I.     L'l  8.C.51  :  61  N.  II.  129,  Green,  269;    Bauer  v.  Bauer,  40  Mo. 

•  79  Kv    29.    Some  States  a«sert  a  61;  86  Ga.  780. 
220 


CHAP.  XI. J    DOMINION  :  WIFE'S  STATUTORY  PROPERTY.    §  14G 

surance  premiums  on  a  life  policy  for  another  s  benefit.1  The 
tendency  of  some  of  the  late  cases  is  to  exempt  promissory  notes 
which  are  drawn  payable  to  a  married  woman  or  order  from  all 
liability  for  the  husband's  engagements ;  a  presumption  being 
thus  afforded  that  the  money  is  due  to  her  and  not  to  her 
husband.2 

§  146.  Inquiry  into  Consideration  Pertinent  :  Promissory- 
Note,  Bond,  &c.  —  Inquiry  into  consideration  is  always  perti- 
nent under  the  equity  rule,  and  in  States  where  the  wife  is  not 
invested  with  plenary  power  of  legal  disposition  under  appro- 
priate statutes.  This  applies  to  the  wife's  promissory  note, 
which,  as  the  law  stands,  apart  from  statute,  cannot  be  a  safe 
investment  for  any  one  ;  for  its  value  consists  in  the  proof  that 


1  84  Ga.  309. 

2  See  Cowles  v.  Morgan,  34  Ala. 
535  ;  Lewis  v.  Harris,  4  Met.  (Ky)  353; 
Chapman  v.  Williams,  13  Gray,  416; 
Paine  v.  Hunt,  40  Barb.  75 ;  Tooke  v. 
Newman.  75  111.  215.  Since  the  second 
decision  in  Yale  v.  Dederer,  the  New 
York  statute  of  1860  provides  that  any 
married  woman  possessed  of  real  estate 
as  her  separate  property  may  bargain, 
sell,  aud  convey  such  property,  and 
"  enter  into  any  contract  "  in  reference 
to  the  same.  By  way  of  construing 
this  statute,  together  with  the  prior 
acts  of  1848  and  1849,  the  New  York 
Court  of  Appeals  has  charged  a  mar- 
ried woman  as  party  without  consider- 
ation to  a  promissory  note,  where  she 
added,  as  promisor  or  special  indorser, 
express  words  charging  the  payment 
of  the  note  on  her  separate  property. 
Corn  Exchange  Ins.  Co.  v.  Bahcock, 
42  N.  Y.  613  ;  Knowles  v.  Toone,  96 
N.  Y.  534.  She  may  therefore  now 
become  a  surety  or  guarantor,  by  force 
of  statute,  not  only  in  New  York  but 
in  some  other  States,  though  the  Stat- 
ute of  Frauds  must  apply  to  her  oral 
promise  to  be  liable  for  another.  Wool- 
sey  v.  Brown,  74  N.  Y.  82 ;  Hart  v. 
Grigsby,  14  Bush,  542;  Northwestern 
Life  Ins.  Co.  v.  Allis,  23  Minn.  337. 

In  New  Jersey,  on  the  other  hand,  so 


long  as  no  such  power  was  given  under 
statute  for  the  married  woman  to  dis- 
pose of  her  separate  property  as  has 
been  conferred  by  the  New  York  legis- 
lature, equity  has  refused  to  recognize 
any  power  in  a  married  woman,  inde- 
pendently of  appropriate  legislation,  to 
charge  her  separate  statutory  estate  by 
any  writing,  even  though  it  contain 
words  which  show  a  clear  intention  to 
bind  such  estate,  except  by  a  mortgage 
acknowledged  as  required  by  law,  or 
for  debts  contracted  for  the  benefit  of 
her  separate  estate,  or  for  her  own 
benefit  on  the  credit  of  it;  and  hence 
it  declines  to  impose  a  lien  on  the 
wife's  separate  estate  because  of  her 
note  as  surety,  even  though  by  express 
words  she  charges  the  payment  of  that 
note  on  her  separate  property.  Perkins 
r.  Elliott,  7  C.  E.  Green,  127  ;  Kolm  v. 
Russell,  91  111.  138  ;  Dunbar  v.  Mize, 
53  Ga.  435.  But  see  44  N.  J.  L.  245. 
In  other  States  the  wife's  capacity  to 
make  a  contract  of  suretyship  or  guar- 
anty for  another  is  still  denied.  Russel 
?'.  People's  Savings  Bank,  39  Mich.  671  ; 
51  Mich.  626;  87  Mich.  121;  34  Neb. 
817.  See  65  Vt.  231.  And  quite  gen- 
erally her  simple  indorsement  of  a  bill 
or  note  is  held  to  be  inoperative  beyond 
divesting  her  of  a  title  therein.  Mo- 
reau  v.  Branson,  37  Ind.  195. 

227 


§  146  THE   DOMESTIC    RELATIONS.  [PART   II. 

it  was  a  contract  on  her  part,  and  a  binding  contract,  relative  to 
her  separate  property,  within  the  general  rule.  But  the  finding 
of  facts  by  the  jury  or  trier  settles  such  a  question.1 

But  whether  b}'  promissory  note,  bond,  oral  or  written 
promise,  the  instrument  and  the  proof,  taken  together,  must  dis- 
close the  intention  2  to  charge  her  separate  estate  expressly,  or 
else  some  beneficial  object  for  which  the  money  was  raised.  If 
a  loan  is  made  to  the  wife,  the  purpose  of  that  loan  must  be 
established  by  the  lender  as  the  test  of  his  right  to  recover.a 
So,  too,  if  she  gives  a  bond,  whether  as  surety  or  otherwise,4  or 
signs  or  indorses  a  promissory  note.5  And  in  some  States,  even 
in  equity,  as  to  her  properly  executed  conveyance  of  real 
estate.6  But,  on  the  other  hand,  the  general  property  rights  of 
married  women  being  now  recognized  by  sundry  statutes,  their 
right  in  equity  to  make  contracts  affecting  their  property  is  no 
longer  limited  to  property  settled  formally  to  a  sole  and  separ- 
ate use  ;  and  although  in  numerous  instances  statutory  requisites 
for  making  the  contract  binding  in  law  may  be  wanting,  equity 
will  bind  her  property,  nevertheless,  where  she  or  her  estate 
has  received  the  benefit  of  the  transaction." 

1  133  Penn.  St.  544.     Even  in  Mas-  upon  the  credit  of  her  estate.     Williams 

sachusetts,  where  the  wife's  mortgage  v.  King,  43  Conn.  569. 
on  real  estate  duly  executed  is  upheld,  a  3  Way  v.  Peck,  47  Conn.  23;  Viser 

note  secured  by  it,  if  for  uubeneficial  v.  Scruggs,  49  Miss.  705.     But  where 

consideration,   such    as  the   husband's  she   borrows   money   in  person   or   by 

indebtedness,    could    not   be    enforced,  agent  without  notice  that  it  is  for  any 

Heburn    v.    Warner,     112     Mass.     271.  one's  benefit   but  her  own,   she  cannot 

And  soi-  Wright  v.  Dresser,  110  Mass  afterwards   deny   a  consideration.      34 

51;  49  Midi  538;  Marchand v.  Griff on,  S.  C.  175.     That  she  borrows  for  her- 

140   I\   S.   516;  65   Vt    231.     But  the  self  and  then  gives  the  money  to  her 

latest  legislation  in  Massachusetts  does  husband  does  not  diminish  her  liability. 

nol  require  the  consideration  of  a  wife's  85  Ga.  200. 

contract    to  enure  to  her  own  benefit,         4  Gosman  v.  Cruger,  69  N.  Y.  87. 
and  her  joinl  note  with  her  husband,  <>r  In  Georgia  a  bonajide  holderof  such 

her  indorsement,  hinds  her  to  quite  or  a    note,    before    maturity    and    without 

nearly  the  same  extent  as  that  of  any  notice,  is  protected.     7<>  Ga.  322. 
single  woman.      Major    v.    Holmes,   124  :'  Cases  supra ;   Flanders  v    Abbey,  6 

Ma       i"-;   Kenworthy  v.  Sawyer,  125  Bis.    lf>;   Conrad  v.  Le  Blanc,  29  La. 

Ma      2      Goodnow  v.  Hill,  125  Mass.  Ann.  123.     Or  confesses  judgment.    04 

587  Md.   95.     As  to   binding  by  an    official 

-  The  i  i     amption  is  thai  a  contract  bond,  Bee  74  Wis.  582. 
entire  l    into  by  a  married  woman   hav-  fi  Sutton  v.  Aiken,  62  Ga.   733;  86 

tate,  for  its  benefit  or  Wis.  399. 
fur  her  exclusive  benefit,  was  contracted         7  Donovan's  Appeal,  41  Conn.  551. 
228 


CHAP.  XI.]     DOMINION:  WIFE'S  STATUTORY  PROPERTY.    §148 

We  speak  here  with  a  constant  reservation  of  feme  sole  liabil- 
ities acquired  under  local  statutes  which  may  affect  at  any  time, 
and  even  reverse  all  such  issues  ; x  for  after  all,  as  the  latest  mar- 
ried women's  acts  are  construed  in  some  States,  a  wife  is  sui 
juris  except  as  to  her  husband,  and  may  bind  her  separate  prop- 
erty with  little  or  no  restriction  ;  as  by  giving  a  bond  or  her 
promissory  note,  or  by  indorsing  or  by  way  of  guaranty.2 

§  147.  Equity  charges  Engagement  on  General  as  ■well  as 
Specific  Property.  —  Equity  will  charge  a  debt,  and  even  one 
with  mortgage  or  other  collateral  security  upon  specific  property, 
upon  the  wife's  separate  property  generally  at  the  time  of  the 
engagement,  so  long  as  the  debt  was  contracted  for  the  benefit 
of  the  wife's  separate  property.3  At  law,  of  course,  there  may 
be  no  such  remedy ;  and  yet  it  should  be  borne  in  mind  that 
local  legislation  frequently  extends  the  legal  rights  of  a  married 
woman  in  this  same  direction.  Whenever  services  are  rendered 
for  the  benefit  of  a  married  woman's  separate  estate  with  her 
knowledge  the  presumption  is  that  they  were  rendered  at  her 
request.4 

§  148.  Married  "Woman's  Executory  Promise  ;  Purchase  on 
Credit.  —  In  general  it  is  held  that  a  married  woman  cannot 
become  personally  liable  on  her  general  or  executory  promise 
except  it  concern  expressly,  under  general  rules,  her  benefit  or 
her  separate  estate.  A  married  woman's  personal  incapacity  to 
contract  is  still  the  law's  assumption  unless  the  statute  is  expli- 
cit on  such  a  point ;  though  here,  as  elsewhere,  statutory  intent 
is  to  be  fairly  and  not  technically  construed.  Hence  a  note  given 
by  her  upon  any  other  consideration  is  void,5  even  though  it  be 


1  As  to  evidence  in  such  cases,  see  married  woman's  note  impliedly  guar- 
Schonler,  Hus.  &  Wife,  §  '262.  antees  her  competency-     51    N.   J.   L. 

2  Boatmen's    Savings  Bank   v.  Col-  547.     Consult  local  code  and  practice; 
lins,  75   Mo.  280;  68  Ga.  255;  Mathes  §  157. 

v.   Shank,  94  Ind.  501;  15  S.  C.   602;  3  Armstrong  v.  Ross,  5  C.  E.Green, 

160  Mass.  418;  150  Mass.  574;  88  Ky.  109. 

46.     To  repudiate  a  note  or  other  en-  "4  Cutter  r.   Morris,    116  N.  Y.  310 ; 

gagement,   and   thus   destroy  the  con-  Williams  v.  King,  43  Conn.  569. 

sideration  given  her,  should  leave  the  5  Kenton   Ins.  Co.  v.  McClellan,  43 

other  party  free  to  pursue  the  consider-  Mich.  564;  Pippen  v.  Wesson,  74  N.  C. 

ation      148  Penn.  St.  47  ;  §  148.  437;  Stokes  v.  Shannon,  55  Miss.  583. 
The  accommodation  indorser  of  a 

229 


§148 


THE   DOMESTIC   DELATIONS. 


[PART   II. 


iu  the  hands  of  a  lona  fide  holder.1  The  wife's  bond  for  pay- 
ment of  money  does  not  bind  her  personally.2  The  wife  cannot 
become  a  general  borrower,  even  though  she  give  a  promissory 
note  or  security  in  the  same  connection.3  She  is  not  liable  on 
her  mere  contract  to  convey  or  purchase  land.4  Her  general 
engagements,  in  a  word,  without  the  scope  of  the  general  rules 
we  have  stated,  will  create  no  charge  upon  her  separate  property 
enforceable  in  equity.5  Some  States,  however,  under  their  lib- 
eral enabling  acts,  and  especially  the  later  ones,  repudiate  such 
restrictions  upon  the  jus  disponendi.6 

There  is  some  difficulty  in  the  purchase,  by  a  married  woman, 
of  property,  whether  real  or  personal,  on  credit,  arising  out  of 
the  circumstance  that  she  cannot  make  a  contract  for  payment 
which  will  be  personally  binding.7  There  is  much  logical  confu- 
sion on  this  point ;  and  the  true  equity  rule  appears  to  be  to 
regard  not  so  much  the  credit  as  the  consideration  of  that  credit, 
whether  it  were  for  her  benefit  or  on  express  credit  of  the  separ- 
ate property.     Where  the  wife  cannot  be  sued  upon  her  promise 


1  Kenton  Ins.  Co.  v,  McClellan,  43 
Mich.  564. 

2  Huntley  r.  Whitner.  77  N.  C.  392; 
Vandyke  /'.Wells,  103  Penn.  St.  49. 

'■'■  O'Daily  v.  Morris,  31  Ind.  Ill  ; 
Way  v.  Peck,  47  Conn.  23  ;  Viser  v. 
Scruggs,  49  Miss.  705. 

4  Scarlett  v.  Snodgrass,  92  Ind.  262 ; 
Warren  v.  Castello,  109  Mo.  338; 
Side]  '•.  Land  Co.,  94  Ala.  369.  See 
distinctions  stated  in  Bybee  v.  Smith, 
88  K  . .  648,  between  an  executory  and 
ited  sale  of  land.  Under  Virginia 
Btatate  a  wife  is  now  held  bound  to 
specific  performance  of  her  contract  to 
convey  her  land.  87  Va.  478.  And  see 
79  Tex,  551. 

*  Williams  v.  Hugunin,  69  111.  214; 

§  144;  Hnyler  v.  Atwood,  26 
N.  J.  Eq.  504 ;  Stillwell  v.  Adams,  29 
Ail:.  .•:)'). 

•  See  Allen  v,  Fuller,  n«  Mass. 402; 

Knapp  v.  Smith,  L'7  N.  Y.  277. 

7  In  New  Hampshire  it  was  held  that 
:i  married  woman  could  not,  under  the 
statutes  :><  they  stood  a  few  yef>rs  ago, 
make  a  contracl  for  money  or  property 

230 


in  anticipation  of  the  purchase  of  sepa- 
rate estate;  and  hence  that  her  note 
given  for  money  borrowed,  wherewith 
to  make  such  purchase,  was  void. 
Ames  v.  Foster,  42  N.  H.  381.  But  see 
later  statutes  of  this  State.  Batchelder 
v.  Sargent,  47  N.  H.  262 ;  Blake  v. 
Hall,  57  N.  H.  382.  See  also  Thomp- 
son v.  Weller,  85  111.  197  ;  103  N.  C. 
296.  On  the  other  hand,  the  New  York 
doctrine  is  that  she  may  purchase  prop- 
erty on  credit;  and  if  the  vendor  will 
run  the  risk  of  being  able  to  obtain 
paj  nient  of  the  consideration  of  the 
sale,  the  transfer  remains  valid,  and  no 
estate  will  pass  to  the  husband,  whether 
the  wife  had  previously  any  separate 
estate  or  not.  Darby  v.  Calligan,  16 
N.  Y.  21  ;  Knapp  v.  Smith,  27  N.  Y. 
277.  So  in  other  States.  Chapman  v. 
Foster,!;  Allen,  136;  shields  ,-.  Keys, 
24  Iowa,  298;  52  N.  J.  I,.  36.  And  her 
separate  estate  is  in  fact  charged,  under 
suitable  circumstances,  by  her  purchase 
on  credit,  as  we  have  already  seen. 
Supra,  §  145. 


CHAP.  XI.]     DOMINION  :  WIFE'S  STATUTORY  PROPERTY.    §  149 

to  buy  upon  credit,  she  will  not  in  equity  be  allowed  to  decline 
and  yet  keep  the  property  too;  and  hence  lands  or  personal 
property  sold  her  on  her  credit,  and  for  the  benefit  of  her  separ- 
ate estate,  have  been  treated  as  subject  to  the  vendor's  lien,  even 
though  the  notes  she  gave  by  way  of  executory  contract  could 
not,  as  such,  be  enforced  against  her.1  And,  once  again,  it  is 
asserted,  and  quite  fairly,  that  the  sale  to  a  married  woman  on 
credit  is  a  voidable  contract  on  her  part :  that  she  may  either 
recede  from  the  bargain  and  claim  its  annulment,  or  allow  it  to 
stand  with  a  right  in  the  vendor  to  subject  the  specific  property 
to  the  payment  of  the  debt.2 

§  149.  Married  Woman's  Ownership  of  Stock  ;  Employment 
of  Counsel.  —  Transfers  of  a  married  woman's  stock  in  a  corpor- 
ation require,  under  some  statutes,  the  husband's  written  assent 
or  joinder ;  under  others,  again,  she  may  convey  as  if 
sole.3  After  her  transfer  without  observance  of  such  require- 
ments, she  may,  upon  information  of  her  legal  rights,  obtain  a 
retransfer  in  equity,  notwithstanding  subsequent  purchasers 
have  intervened.4  A  pledge  of  the  wife's  stock  is  sometimes 
considered.5 

In  Rhode  Island  it  is  held  that  compensation  of  the  wife's 
solicitor  for  prosecuting  a  suit  in  equity  regarding  her  separate 
leaseholds  cannot  be  recovered  from  her  separate  estate.6     As  to 

1  Pemberton  v.  Johnson,  46  Mo.  ficial  ownership  to  herself  affords  a  due 
342  ;  Bruner  v.  Wheatou,  lb.  363  ;  Car-  consideration  for  a  purchase,  even 
penter  r.  Mitchell,  54  111.  126;  Hunter  though  her  husband  should  also  have  a 
v.  Duvall,  4  Bush,  438;  Smith  v.  Doe,  beneficial  ownership.  129  Ind.  478; 
56  Ala.  456 ;  Bolaud  v.  Kliuk,  63  Ga.  Wilson  v.  Wilson,  80  Mich.  472. 

447.  3  A  married  woman  has  the  usual 

2  Nicholson  v.  Heiderhoff,  50  Miss,  liability  of  stockholders  when  she  holds 
56.  See  further,  Schouler,  Hus.  &  stock  in  a  national  bank.  14  Fed.  Rep. 
Wife.  §  264.  405  ;  Bundy  v.  Cocke,  128  U.  S.  185. 

The  current  of  negative  authority  As  to  enforcing  such  liability,  see  Key- 
on  this  point  turns  much  towards  the  ser  v.  Hitz,  133  U.S.  139;  38  Fed.  700; 
purchase  of   real,  estate  by  the   wife;  39  Fed.  554. 

and,  upon   what   ought  to  be   deemed  4  Merriam  v.  Boston  R.,  117  Mass. 

more  fundamental  reasons  than  those  241.     See,   further,    Schouler,   Hus.   & 

of  cash  or  credit,  it  is  held  that  a  mar-  Wife,   §  268.     As  to   the   wife's  deal- 

ried  woman   is  incapable  of  acquiring  ings  with  a  stockbroker  see  42  N.  J. 

real  property  to  her  separate  use  under  Eq.  60. 

puch    circumstances.      This,    however  5  94  Penn.  St.  76. 

is   by    no   moans    a   uniform   doctrine.  6  Cozzens  u.  Whitney,  3  R.  I.  79. 
Schouler,  Hus.  &  Wife,  §  265.     A  bene- 

231 


§  150  THE    DOMESTIC   EELATIONS.  [PART   II. 

legal  fees  for  the  wife's  divorce,  some  States  stiii  disincline  to 
charge  her  estate,  in  absence,  at  all  events,  of  an  express  under- 
taking on  her  part  to  that  effect  and  genuine  benefit.1  But  in 
Xew  York,  professional  services  rendered  a  married  woman,  as 
in  collecting  demands  arising  out  of  transactions  permitted  her 
by  the  statute,  are  recoverable  under  the  general  rule  against  her 
separate  estate,  as  rendered  by  her  procurement  on  its  credit 
and  for  its  benefit.2  Contracts  by  the  wife  for  employing  coun- 
sel in  her  property  suits  are  in  other  States  sustained  more  or 
less  liberally,  as  in  Indiana  3  and  Mississippi,4  and  Maryland.5 

§  150.  Joinder  of  Husband  ;  Wife's  Conveyances  and  Con- 
tracts. —  The  rule  in  many  States,  under  the  married  women's 
acts,  is  that  the  husband  must  join  the  wife  in  contracts  and 
conveyances  relating  to  her  separate  property.  Particularly  is 
this  true  of  transactions  concerning  the  wife's  real  estate,  upon 
which  topic  we  have  already  spoken.6  Contracts  and  convey- 
ances otherwise  made  are  not  considered  binding.7  For,  aside 
from  radical  legislative  changes,  husband  and  wife  were  always 
differently  regarded  in  this  respect ;  he  having  complete  control 
over  his  own  property,  while  she  had  only  such  control  as 
equity  or  the  modern  statute  might  confer  over  hers.  The  lan- 
guage of  the  married  women's  acts  in  many  States  authorizes 
the  inference  that  nothing  further  than  the  written  concurrence 
of  the  husband  is  requisite  to  complete  the  validity  of  the  wife's 
transfer  of  separate  personal  property ;  the  voluntary  convey- 
ance of  the  wife  with  her  husband  passes  her  separate  estate, 
real  or  personal ;  nor  is  the  husband's  joinder  always  essential 
to  her  transfer  of  personal  property,8  or  other  transactions.9 
And  in  some  States  the  wife's  sole  deed  of  her  separate  real 
estate  is  sufficient  to  pass  her  entire  interest;10  though,  so  antag- 

1   Pfirehing  v.  Falsb,  *7  111.  200.  360;  Miller  v.  Hinc,  13  Ohio  St.  565; 

en  v.  Cawley,  36  X.  V.  600.  Schouler,  litis.  &  Wife,  §269,  and  cases 

;  Major  '-.  Symnies,  19  I ikI .  117:  79  cited;  181  Penn.  St.  573. 

In<l.  259.  8  Trader  v.  Lowe,  45  Mil.  1. 

1   Porter  v.  Haley,  55  Miss.  66.  9  A   married   woman   can    go    into 

■   \M.  106.  insolvency  without  lier  husband's  join- 

»  Supra,  §  133.  der.     48  Minn.  93. 

•   Wright  v.    Brown,  44    Penn.   St.  '■  Springer  v.    Berry,  47  Me.  3.30; 

l'.  1,1/  /    Simonson,  2  Beasl.  232;  Farr  v.  Sherman,  11    Midi,  33 ;  Hale  v. 

Major  v.  Symmes,  19  [nd.  117;  67  Ala.  Christy,  8  Neb.   264;  Lihby  v.  Chase, 

909 


CHAP.  XI.]    DOMINION  :  WIFE'S  STATUTORY  PEOPEETY.     §  150 

onistic  is  this  to  the  old  common  law,  that  a  clearly  enabling 
statute  should  he  required.1 

Following  the  spirit  of  recent  legislation,  some  American 
courts  now  hold  the  wife  liable  on  her  covenants  contained  in  a 
conveyance  of  her  separate  lauds;2  or  her  agreement  to  assume 
a  mortgage  when  taking  a  conveyance  of  lands  so  encumbered.3 
So  specific  performance  is  decreed  against  her  on  her  written 
promise  to  convey ;  provided  the  contract  be  executed  with  the 
formalities  requisite  in  her  conveyance.4  And  equity  will  not 
permit  the  wife  to  avoid  a  sale  without  refunding  the  purchase- 
money.5  Under  late  Massachusetts  statutes,  moreover,  a  married 
woman  may  bind  herself  by  her  separate  contract  for  the  pur- 
chase of  real  estate.6  In  other  States  her  ratification  of  a  defec- 
tive conveyance,  whether  directly  or  by  acts  presumptive,  is 
pronounced  valid.7  All  this,  of  course,  is  contrary  to  the  old 
rule,  which  in  many  parts  of  the  United  States  still  obtains  to  a 
greater  or  less  decree.8 

A  wife  who  joins  suitably  with  her  husband  or  trustee  in  a 
conveyance  of  her  separate  or  general  property,  so  as  legally  to 
convey  it  in  conformity  with  statute,  cannot  afterwards  assert 
her  equitable  title  so  as  to  avoid  altogether  or  change  from  an 
absolute  to  a  security  title,  as  against  a  bona  fide  purchaser  for 
value,  having  no  notice  of  her  equitable  claim ; 9  nor,  according 


117  Mass.  105  ;  Beal  v.  Warren,  2  Gray,         5  Kolls  v.  De  Leyer,  41  Barb.  208  ; 

447.  106  N.  C.  512. 

1  See  further,  Sehouler,  Hus.  &  6  Faucett  v.  Currier,  109  Mass.  79. 
Wife,  §  269.  A  void  mortgage  deed  A  wife  who  executes  a  bond  and  mort- 
by  the  wife  cannot  be  ratified  under  a  gage  with  her  husband  to  secure  the 
subsequent  statute  without  a  new  con-  purchase  money  of  land  conveyed  to 
sideration.     94  Ala.  423.  him  is  liable  on  the  bond.     Staat  v.  Van 

2  Basford  v.  Peirson,  7   Allen,  524  ;  Sickel,  52  N.  J.  L.  370. 

Gunter  v.  Williams,  40  Ala.  561  ;  Rich-  '  Spafford  v.  Warren,  47  Iowa,  47. 

mond  v.  Tibbies,  26  Iowa,  474.  8  Botsford   v.  Wilson,    75   111.    133 

3  Hinder  r.  Atwood,  26  N.  J.  Eq.  504.  Stidham  v.  Matthews,  29  Ark.  650 
And  see  Fenton  v.  Lord,  128  Mass.  466 ;  supra,  c.  6 ;  Gore  v.  Carl,  47  Conn.  291 
CooUdge  v.  Smith,  129  Mass.  554.  86  Tex.  194.     Though   a  wife   be  not 

4  Woodward  v.  Seaver,  38  N.  H.  29  ;  bound  by  her  covenant  to  convey,  the 
Baker  v.  Hathaway,  5  Allen,  103.  See  vendee  will  not  be  released,  if  she  offers 
Rumfelt  v.  Clemens,  46  Penn.  St.  455  ;  to  do  so.     6  Lea,  397. 

Stevens  v.  Parish,  29  Ind.  260 ;  Love  v.  9  Pepper   v.    Smith,    54    Tex.    115; 

Watkins,     40    Cal.   547.      Cf.   §§   94,  Davidson  v.   Lanier,   51   Ala.  318;  Co 

148.  megys  v.  Clarke,  44  Md.  108. 

233 


§  151  THE   DOMESTIC   RELATIONS.  [PART    II. 

to  the  growing  opinion,  assert  a  present  or  subsequent  title  after 
duly  conveying  her  entire  interest.1  The  recitals  of  her  acknowl- 
edgment in  the  magistrate's  certificate  may  be  relied  upon  by  a 
bona  fide  purchaser  or  mortgagee.2 

Under  some  married  women's  acts  a  lease  to  her,  and  its  cov- 
enants, as  _for  rent  or  taxes,  are  held  binding  upon  the  wife  ; 3 
and  so,  too,  a  lease  from  her.4 

§  150  a.  Statutory  Restraints  upon  Alienation  of  Wife's  Sep- 
arate Property.  —  In  some  States  a  married  woman  is  restrained 
from  alienation  in  certain  instances.  Thus,  in  Indiana,  the  wife 
is  forbidden  to  alienate,  with  or  without  her  husband's  consent, 
land  acquired  by  a  former  marriage,  while  children  of  such  mar- 
riage are  living.5  Eestraints  against  incumbering  the  wife's  sep- 
arate lands  as  security  for  her  husband's  debts  are  also  found ; 6 
and  the  more  so  where  the  husband  makes  no  provision  for 
maintenance  in  lieu  thereof.7 

§  151.  Improvements,  Repairs,  &c,  on  Wife's  Lands  ;  Mechan- 
ics' Liens.  —  Upon  the  ground  that  the  wife's  separate  estate 
should  be  bound  by  contracts  for  its  benefit,  or  upon  its  express 
credit,  her  debts  for  improvements  upon  lands  conveyed  to  her 
sole  and  separate  use  have  been  enforced  in  several  late  in- 
stances.8    So,  too,  the  joint  contract  or  joint  note  of  herself  and 

1  Knight  v.  Thayer,  125   Mass.  25;  cial    sale.     100    Ind.    589.     The    Ken- 

King  v.  Hea,  56  Ind.  1.     But  see   Bar-  tucky  code  provides  that  no  sale  of  a 

kcr  v.  ( lircle,  00  Mo.  25S.     An  after-  wife's  separate  estate  shall  he  ordered 

acquired    title    hy   her   enures    to   her  if  forbidden  by  the  deed,  will,  or  con- 

grantee.     Guertin    v.    Momblear,    144  tract  under  which  the  property  is  held. 

111.  32.  80  Ky.  424. 

-  Singer  Man.  Co.  v.  Rook,  84Penn.  i;  The   Indiana  statute  of  1879  pro- 
Si    1 1_'  ;  Marston  v.  Brittenham,  76  111.  hibited  as  to  incumbering,  hut  not  from 
611;    Conn.    Life    Ins.    Co.    v.    McCor-  conveying  in  payment  of  the  husband's 
mick,  45  Cal.  580;  Homoeopathic  Life  debts.     88  Ind.  si. 
I       I  !o.  v.  Marshall,  32  N.J.  Eq.  10:?.  7  Duquesne  Hank's  Appeal,  96  Penn. 

■■  Worthington    v.   Cooke,    52    Md.  St.   298.     See  as   to  the   wife's   right 

297;    Harris   v.  Williams,  44  Tex.  124;  to  prevent  fraudulent  alienation  of  her 

Albin  v.  Lord,  39  N.  II.  196.  interest  in  her  husband's  land,  3:J  Kan. 

«  Schouler,  Hus.  &  Wife,  §  271,  and  572. 

Child     v.    Sampson,    117  8  Conway   v.   Smith,    13   Wis.    125; 

62  :    Douglass   ''.    Fulda,  50  Cal.  Fowler  v.  Seaman,  40  N.  Y.  592;  Car- 

77      Pearcy  v.  Henley,  82    Ind.  129;  75  penter    V.    Leonard,    5    Minn.    155;    80 

Ala.  I  Mich.   472;    Schouler,    Hus.    &   Wife, 

i    In-).     117;     108    Ind.    174,    292.  §  272. 

But  she  may  lime  partition  or  a  judi- 

234 


CHAP.  XI.]      DOMINION:  WIFE'S  STATUTORY  PROPERTY.    §  151 

husband,  or  in  some  States  her  sole  note  or  sole  contract,  fur 
lumber  and  materials  to  be  used  thereon.  It  is  the  declared 
rule  of  many  States  that  the  husband  cannot  of  his  own  act,  and 
without  his  wife's  consent,  subject  the  hitter's  separate  land  to 
debts  for  improvements,  or  subject  it  to  a  mechanic's  lien.1 
But  the  mechanic's  statutory  right  of  lien  generally  extends  to  a 
married  woman's  lands  where  she  contracted  in  person  or  by 
agent,  and  perhaps,  too,  where  the  contract  was  for  the  benefit  of 
the  laud.2  A  husband's  bona  fide  investment  of  money  in  im- 
provements upon  his  wife's  estate  cannot  be  subjected  to  his  own 
demands  nor  to  satisfaction  of  the  claims  of  his  creditors,  except 
on  the  usual  principles.3  And  recent  cases  rule  that  where 
husband  and  wife  occupy  together  the  wife's  land,  the  wife's 
possession  must  be  respected  as  the  husband's  would  be  of  his 
own  property  in  the  absence  of  a  title  differently  recorded.4 

Apart  from  permanent  improvements,  a  married  woman's  real 
estate  may  well  be  rendered  liable  for  repairs  made  to  her  sepa- 
rate estate  at  her  own  request,  and  as  necessary  for  its  due  pres- 
ervation and  enjoyment.  And  where  a  wife  buys  land,  gives 
her  notes  in  payment,  and  enters  with  her  husband  and  makes 
improvements,  the  vendor's  lien  for  his  purchase-money  is  favored 
at  this  day  to  the  full  extent.5  Independently,  however,  of  en- 
abling statutes,  the  written  contract  of  a  married  woman,  by 
which  she  acknowledges  an  indebtedness  for  materials  and  labor 

1  Briggs  v.  Titus,  7  R.  I.  441  ;  Spin-  garded  as  presumably  a  post-nuptial 
ning  v.  Blackburn,  13  Ohio  St.  131;  G2  gift  to  her.  92  Ala.' 146,  152.  And 
Conn.  75;  145  111.  389;  90  Ky.  380;  liable  to  his  existing  debts.  Humphrey 
Schouler,  Hus.  &  Wife,  §  272.    "  v.  Spencer,  36  W.  Va.  11 ;  §  185,  post; 

2  Vail  v.  Meyer,  71  Ind.  159  ;  Wood-  Connecticut  Society's  Appeal,  61  Conn. 
ward  v.  Wilsou,  68  Penn.  St.  208;  153  465.  But  circumstances  may  repel  such 
Penn.  St.  208 ;  Anderson  v.  Armstead,  presumption.  61  Conn.  465.  As  to 
69  111.452;  25  Fla.  118;  Marsh  v.  Al-  the  husband's  own  claim  for  improve- 
ford,  5  Bush,  392;  Schouler,  Hus.  &  ments,  see  Holmes  v.  Waldron,  85  Me. 
Wife,  §  272,  and  cases  cited.     A  hus-  312;  §§  184,  189,  194. 

band  acting  as  his  wife's  agent  in  pur-  4  Brown  v.  Carey,  149  Fenn.  St.  134. 

chasing  materials  and  supervising  the  Hence  the  right  to  insure  the  premises 

erection  of  buildings  on  her  land  cannot  is  that  of  the  wife  only.     Kavanaugh  v. 

bind   her    by   his    adjustment    of    the  Barber,  131  N.  Y.  211.     As  to  damage 

amount  due,  against  her  right  to  ques-  for  injuries,  see  152  Mass.  7;  135  N.  Y. 

tion  and  ascertain  the  facts.     Parker  v.  201. 
Collins,  127  N.  Y.  185.  5  Bedford    v.    Burton,    106    U.    S. 

3  Improvements  thus  made   are  re-  338. 

235 


§  152  THE   DOMESTIC    KELATIONS.  [PAET    II. 

used  to  improve  her  separate  estate,  is  void  at  law.1  And  where 
she  borrows  money  to  make  unnecessary  repairs,  the  lender  is 
not  favored.2 

§  152.  Mortgage  of  Wife's  Lands.  —  The  husband  cannot 
mortgage  his  wife's  separate  property  for  his  individual  debt;3 
for  it  is  a  general  principle  that  the  wife's  separate  property 
cannot  be  made  liable  for  the  debts  of  her  husband  or  others 
without  her  assent.4  But  a  mortgage  given  by  a  married 
woman  upon  her  separate  estate,  acknowledged  in  conformity 
with  the  statute,  and  with  the  joinder  of  the  husband,  is  a  valid 
security  and  capable  of  enforcement ;  not  alone  where  she  had  it 
mortgaged  to  secure  her  own  or  her  husband's  debt,  but  also,  in 
a  case  free  from  fraud  or  undue  influence,  where  it  was  mortgaged 
for  the  benefit  of  a  third  person.5 

But  in  all  such  cases  the  wife's  rights  as  surety  are  carefully 
guarded  ;  and  the  husband  cannot  pervert  the  security  to  her 
detriment,  nor  bind  her  by  his  own  agreement  for  extension  or 
discharge.6  And,  on  the  other  hand,  where  she  is  a  mortgagee 
in  her  own  right,  the  husband  cannot  alone  receive  payment 
and  satisfaction  and  discharge  the  mortgage.7  The  creditor's 
agreement  of  defeasance  accompanying  the  transaction,  or  cov- 
enants on  his  part,  must  be  faithfully  observed ; 8  and  as  to 
other  security  her  rights  are  the  usual  ones.9     It  must  be  re- 

1  Williams  v.  Wilbur,  67  Ind.  42.  gn.ace  to  secure  the  purchase-money  of 

-  McMullen's  Appeal,  107  Term.  St.  land,  see  Merser  v.  Smyth,  58   N.  H. 

90.  298;  Brewer   v.    Maurer,   38   Ohio  St. 

3  Patterson  v.  Flanagan,  1  Ala.  S.  C.  543.  See  §  150  as  to  husband's  joinder. 
427.  G  She  is  not  surety  when  joint  owner 

4  Butchins  v.  Colby,  43  N.  II.  159;  with  her  husband.     89  Ga.  306. 

Yale  v.  Dederer,  18  N.  Y.  265;  Johnson         '  McKinney  v.  Hamilton,  51   Penn. 

?'.  Runyon,  21   Ind.  115.  St.  63. 

6  See  Schouler,  Hus.  &  Wife,  §  274,         '  Lomax  v.  Smyth,  50  Iowa,  223. 
and  cases  cited;   Danbert  /•.  Eckert,  94         y  Wilcox    v.    Todd,    64    Mo.    388. 

"■■nil.  St.   2.").";;   112  Penn.  St.  284;   18  Future  advances  to  the  husband  alone 

I       761  ;  Stafford  Bank  v.  Underwood,  under  such  mortgage  to  tin-   creditor 

51  (  onn.  '-'  :    1">  Ark.  147;  -'S2  Fla.481.  for  security  anil   his  bond   to   rcconvey 

All  persons  taking  such  a  mortgage  upon  payment  of  an  existing  debt,  can- 

are  bound   to  ascertain  that  there  lias  notbesetup  against  the  wife.    64  Vt. 

been  no  fraud  on  the  wife  in  inducing  616.     And  see  142  N.  Y.  290.     But  the 

the  mortgage     98  Penn.  St.  561 ;  Mar-  wife  cannot  question  arts  of  her  hus- 

chand   <-.  Griffon,  140   1'.  S.  516.     But  hand   within  scope  of  the  transaction. 

9  ' ,:,    181.     And  Bee  HaU  v.  Tay,  61  Vt.69. 
i.'ii  Mass.  192.    As  to  the  wile's  mort- 
230 


chap,  xi.]    dominion:  wife's  statutory  property.  §  153 

membered  that  in  certain  States  a  conservative  policy  is  still 
pursued,  so  as  to  prohibit  the  wife's  mortgage  to  a  greater  or 
less  extent,  and  with  reference,  perhaps,  to  the  beneficial  nature 
of  the  consideration.1 

§  153.  Wife's  Separate  Property;  Husband  as  Managing 
Agent.  —  The  undoubted  right  of  the  wife,  on  general  princi- 
ples, to  treat  her  husband  as  the  trustee  or  agent  of  her  sepa- 
rate property,  has  given  rise,  under  the  married  women's  acts,  to 
perplexing  questions  as  between  herself  and  his  creditors.  In 
New  York,  her  privileges  in  this  respect  are  carried  very  far  ; 
for  she  may  employ  her  husband  as  her  managing  agent  to 
control  her  property,  without  subjecting  it  to  the  claim  of  his 
creditors  ;  the  application  of  an  indefinite  portion  of  the  income 
to  his  support  does  not  impair  her  title  to  the  property ;  and 
neither  he  nor  his  creditors  will  acquire  an  interest  in  the  prop- 
erty through  his  services  thus  rendered.2  She  may  give  him  a 
power  of  attorney  and  require  him  to  pursue  its  terms  carefully.3 
In  Illinois,  too,  it  is  well  recognized  that  the  wife  may  make  her 
husband  her  agent  to  collect  debts  due  her,  to  receive  from  others 
the  income  of  her  estate,  and,  like  other  agents,  to  manage  and 
control  her  separate  property  in  her  name,4  and  she  may  employ 
him  as  clerk  or  salesman  in  her  business.5  Such,  too,  is  the 
rule  developing  in  certain  other  States,  to  the  practical  disadvan- 
tage of  the  husband's  creditors,  as  well  as  of  the  wife's  protec- 
tion against  her  husband.6 

The  husband's  agency,  whether  created  under  suspicious  cir- 
cumstances or  not,  as  regards  the  public,  is,  like  other  agencies, 
a  matter  of  fact  for  legal  ascertainment  as  to  existence  or  scope 

i  Bowers  v.   Van  Winkle,  41    hid.         2  Buckley  v.  Wells,  33  N.  Y.  518  ; 

4^2 ;  Lippincott  v.  Mitchell,  91   U.  S.  Knapp  v.  Smith,  27  N.  Y.  277. 
767.     See    further,    on    this    subject,  8  Nash  v.  Mitchell,  71  N.  Y.  199 ;  41 

Schouler,  Hus.  &  Wife,  §§  276,  277  ;  92  Kans.  236. 

Ky.  566.      In    some   codes   a  married         4  Patten  v.  Patten,  75  111.  446. 
woman  is  expressly  forbidden  to  become  6  98  111.  38,  47  ;  139  111.  450  ;  §  168. 

a  surety  in  any  manner ;  and  her  mort-  6  Aldridge   v.  Muirhead,   101    U.  S. 

gage  to  secure   her  husband's  debt  is  397 ;    Coleman   v.   Semmes,    56    Miss, 

consequently  void.     103    Ind.   71,  213.  321;  15  Vroom,  105;  Parker  r.  Bates, 

See  also  63  N.  H.  195.     See  Sperry  v.  29  Kan.   597;  Wells  v.  Smith,  54  Ga. 

Dickinson,  82  Ind.  132;  57  Mich.  247;  262.     As  to  delegation  of  his  author- 

18  Fla.  342  ;    85  Ind.  108,  as  to  mort-  ity  by  the  husband,  see  59  Tex.  240. 
gaging  on  a  void  note. 

237 


§  154  THE   DOMESTIC   RELATIONS.  [PAKT   II. 

upon  all  the  proof.  The  courts  in  Illinois  go  so  far  as  to  hold 
that  the  husband's  dealings  with  his  wife's  separate  property  will 
now  be  presumed,  in  the  absence  of  proof  to  the  contrary,  to  be 
in  the  character  of  agent,  even  as  to  the  proceeds  and  income 
thereof;  and  hence  rendering  him  liable  to  account  like  other 
agents,  with  allowance  of  his  reasonable  compensation,  but  so 
as  to  require  him  to  establish  any  claim  he  may  make  of  a  gift 
or  legal  transfer  to  him,  by  due  proof  that  the  wife  so  assented 
and  understood ;  in  short,  that  the  common-law  rights  of  the 
husband  to  the  wife's  property  are  swept  away.1  But  in  such 
a  presumption  certain  other  States  by  no  means  concur.2  Proof, 
however,  that  a  husband  acted  as  special  agent  for  his  wife  in 
a  few  instances  does  not  prove  that  he  was  her  general  or  uni- 
versal agent ;  3  and  yet  the  issue  of  his  beneficial  regard  for  her 
gives  a  material  bias  to  the  decisions,  so  that  whenever  he  has 
been  acting  for  her,  and  his  action  naturally  tends  to  accomplish 
her  known  wishes  in  the  transaction,  little  proof  is  needed  to 
warrant  the  inference  that  his  action  was  authorized  by  her.4 

§  154.  Husband  as  Managing  Agent;  Services,  &c  ;  Hus- 
band's Creditors.  —  It  seems  to  be  the  well-settled  American 
doctrine  that,  by  working  upon  the  wife's  lands,  the  husband 
acquires  no  beneficial  interest  therein  which  can  be  enforced  in 
equity  on  behalf  either  of  himself  or  his  creditors,  in  absence 
of  a  definite  agreement  for  compensation  ;  unless,  possibly,  it 
could  be  shown  to  exceed  in  value  the  cost  of  supporting  the 
whole  family.5     The  crops  cannot  be  attached  by  his  creditors.6 

1  Patten  v.  Patten,  75  111.446;  141  see  aliter,  45  Minn.  515;  unless  she 
111.  226;   149  Penn.  St.  228.  retains  the  advantage  and  thus  adopts 

2  Eystra  v.   Capelle,    61     Mo.    578.     his  action.     47  Minn.  491  ;§  157. 

See  further,  Aldridge  v.  Muirhead,  101  3  Franklin  Bank  v.  Taylor,  131  111. 
I'.  S.  397  :  Paine  v.  Farr,  118  Mass.  74;  377;  151  Mass.  1 1  ;  80  Iowa,  246. 
58  X.  II.  185;  62  Iowa,  395  ;  Martin  v.  4  Simes  v.  Rockwell,  156  Mass.  372. 
Suber,  39  8.  C.  525.  The  husband's  6  Buckley  v.  Wells,  33  N.  Y.  518; 
Si-red  at  length  in  Schou-  Webster  v.  Hildreth,  83  Vt.  457  ;  Cheu- 
ler,  Bus.  &  Wife,  §§277-280.  A  lius-  vete  v.  Mason,  4  Greene  (Iowa),  231  ; 
Land's  threat  to  commit  suicide  is  not  Betts  v.  Betts,  18  Ala.  7s; ;  Common- 
duress  of  the  wife.    43  N.J.  L.  451.  wealth  v.  Fletcher,  6  Bush,  171. 

of  attorney  from  wife  to  hus-  6  Mclntyre   v.   Knowlton,   6   Allen, 

band  for  conveyance  or  other  real  estate  565;  Lewis  w.  Johns,  24  Cal.  98;  Allen 

actioni!   is  broadly   upheld   under  v.  Hightower,  21  Ark.  316. 
>cal  statutes.    41  Kan.  236.     Put 

288 


CHAP.  XI.]    DOMINION  :  WIFE'S  STATUTORY  PROPERTY.    §  154 

Nor  the  betterments,  buildings,  and  rents.1  Nor  is  his  use, 
upon  his  wile's  farm,  of  teams  bought  with  her  money,  a  con- 
version in  any  such  sense  as  to  render  them  attachable  for  his 
debts.2 

With  the  assent  of  the  husband  and  father,  the  labor  of  the 
wife  and  children  may  be  bestowed  upon  the  separate  property 
of  the  wife,  and  thus  enure  to  their  benefit.  There  is  no 
known  rule  of  law  which  requires  the  husband  and  father  to 
compel  his  wife  and  children  to  work  in  the  service  of  his  cred- 
itors.3 And  it  is  held  that  the  husband  may  stipulate,  though 
insolvent,  that  the  product  of  his  own  labor  shall  be  appropri- 
ated to  his  wife's  separate  use;4  and  if  his  own  earnings  are 
exempt  from  execution,  all  the  more  readily  may  he  invest 
them  for  his  wife's  benefit.5  If  permitted  to  be  maintained 
upon  his  wife's  property,  he  does  not  necessarily  acquire  a  title 
to  the  property  or  its  products  merely  by  bestowing  his  volun- 
tary labor  upon  it.6  And  a  similar  principle  may  be  applied  to 
a  wife  supported  from  her  husband's  property.7 


1  White  v.  Hildreth,  32  Vt  265; 
Goss  w.Cahill,42  Barb.  310;  Wilkinson 
i\  Wilkinson,  1  Head,  305  ;  Robinsons. 
Hoffman,  15  B.  Monr.  80. 

Presumptively,  the  rent,  income,  and 
profits  of  a  wife's  separate  statutory 
laud  cannot  be  subjected  by  the  hus- 
band's creditors  to  the  payment  of  his 
debts  even  though  he  contributed  labor 
to  produce  them.  Marye  v.  Root,  27 
Fla.  579 ;  Davison  v.  Gibson,  56  Fed. 
443.  And  his  sale  or  mortgage  of  the 
crops,  without  her  joinder,  knowledge, 
or  consent,  to  one  aware  of  her  owner- 
ship cannot  avail  against  her,  nor  can 
his  creditors  attach  them.  112  N.  C. 
283.  So  as  to  ice  gathered  from  the 
wife's  farm  by  the  husband  as  her 
agent.  34  W.  Va.  128.  But  where 
husband  and  wife  live  on  a  farm  of  hers 
together,  and  the  husband  with  her 
permission  carries  on  the  farm  in  his 
own  name,  on  his  own  account,  and  for 
his  own  benefit,  it  is  held  otherwise  as 
to  crops  completely  severed.  150  Mass. 
275.     See  as  to  tenant  under  husband's 


lease,  61  Vt  364.  Investment  of  the 
rents,  income,  and  profits  of  the  wife's 
lands  in  her  own  name  is  ordinarily  no 
fraud  upon  the  husband's  creditors.  86 
Ala.  267. 

2  Spooner  v.  Reynolds,  50  Vt.  437. 
He  cannot  purchase  land  as  her  agent 
and  personally  purchase  the  incum- 
brance upon  it.     33  S.  C.  325. 

3  Johnson  v.  Vail,  1  McCart.  423. 

4  Hodges  v.  Cobb,  8  Rich.  50.  But 
see  Penn.  v.  Whiteheads,  12  Gratt   74. 

5  Robb  v.  Brewer.  60  Iowa,  539. 

6  Rush  v.  Vought,  55  Penn.  St.  437  ; 
Boss  v.  Gomber,  23  Wis.  284 ;  Merrick 
?•.  Plumley,  99  Mass.  566 ;  Gage  v. 
Dauchy,  34  N.  Y.  293  ;  Hazelbaker  v. 
Good  fellow,  64  111.  238 ;  Feller  v.  Alden, 
23  Wis.  301. 

7  Burcher  v.  Ream,  68  Penn.  St.  421. 
See  Dean  v.  Bailey,  50  111.  481,  as  to 
the  liability  of  a  farm  and  stock,  where 
the  husband's  control  is  not  of  a  char- 
acter inconsistent  with  the  common  in- 
terests of  himself  and  wife. 

239 


§  155  THE    DOMESTIC    RELATIONS.  [PART   II. 

But  it  is  held  that  the  husband's  occupation  and  cultivation 
of  his  wife's  lauds  with  her  assent  may  be  considered  as  be- 
stowed for  the  common  benefit  of  the  family,  or  so  as  to  give 
him  the  right  to  the  products  of  his  own  toil  like  that  of  any 
tenant ;  *  and  that  when  his  own  skill  and  service  were  the 
chief  source  of  emolument,  the  wife  ought  not  to  claim  all  as 
her  own  against  him.2  Moreover,  if  by  contract  express  or 
implied  the  wife  is  indebted  to  her  husband  for  his  services  as 
managing  agent,  it  is  held  that  she  is  subject  to  garnishment  at 
the  instance  of  his  creditors.3 

§  155.  Husbands  Dealings  with  Wife's  Property  ;  Gift,  Fraud, 
Use  of  Income,  &c.  —  Where  the  question  arises,  then,  whether 
the  husband  is  enjoying  the  wife's  property  by  way  of  gift  from 
her,  or  as  her  managing  attorney,  it  must  be  determined  by  evi- 
dence. Iu  either  case  the  advantage  seems  to  be  with  husband 
and  wife  in  all  controversies  with  the  creditor.  The  general 
rule  still  prevails,  however,  that  money  transactions  between 
husband  and  wife  should  be  free  from  fraud,  and  not  prejudi- 
cial to  pre-existing  creditors  of  the  husband.  The  presump- 
tions are  not  equally  balanced  in  the  different  States.  But 
presumptions  of  a  gift  from  the  wife  are  not  to  be  strongly 
favored  where  the  husband  is  held  out  to  others  as  her  agent.4 
So  gifts  of  income  would  be  more  readily  presumed  than  gifts 
of  capital.  Her  title  is  generally  open  to  inspection,  and  may 
be  challenged  for  fraud.5  But  it  is  fair  to  say  that  whenever 
she  gives  her  property  to  him,  without  agreement  for  any  re- 
payment, but  for  investment  in  his  business,  and  to  afford  him 
credit  with  the  world,  and  he  so  invests  it  with  her  knowledge 
and  acquiescence,  or  takes  title  to  real  estate  in  his  own  name, 
with  her  acquiescence,  for  a  similar  purpose,  his  bona  fide  credi- 

1  Elijah  v.  Taylor,  37  111.  247.  and   invest  for  her,  without  her  prop- 

2  Glidden  v.  Taylor,  IB  <  )liio  St.  erty  becoming  liable  for  his  debts. 
509.  Troxell  v.  Stockberger,  105  Penn.  St. 

::   Keller  i\   Mayer,  55  Ga.  406.     As  405. 

to  leaning  a  farm,  see  55  Iowa,  650.  5  See  Schonler,  Tins.  &  Wife,  §281  ; 

1  See   Walis  v.  Newbould,  9  Mich.  Albin  v.  Lord,  39  N.  H.  196  ;  Hinneyc. 

45;  Miller  v.   Edwards,  7   Hush,  394;  Phillips,  50  Penn.  St.  382 ;  Fox  v.  Jones, 

Patl  n  i)   Patten,  75  111.  446;  Aldridge  1  W.  Va.  502;  Logan  v.  Hall,  L9  Iowa, 

v  Mnirhead,  101   U.  8.  897.     A  woman  491 ;  Bryant  v.  Bryant,  3  Bush,  155. 
may   permit  her  husband  to  buy,  sell, 
240 


CHAP.  XI.]     DOMINION  :  WIFE'S  STATUTORY  PROPERTY.     §  155 

tors,  who  had  relied  upon  this  capital,  ought  not,  especially 
when  his  time  and  energies  were  of  essential  value  to  it,  and 
changes  of  material  or  investment  are  such  as  to  render  identi- 
fication of  the  property  as  hers  impossible,  to  suffer  afterwards, 
because  of  her  attempt  to  recall  the  gift  when  she  finds  him 
embarrassed ;  not  even  a  special  partner  would  have  a  right  to 
do  so.1  Furthermore,  an  investment,  by  the  husband,  of  the 
.  wife's  separate  means  and  property,  whether  in  purchasing  real 
estate  or  personal  property  for  her  separate  use,  is  valid,  if  the 
rights  of  creditors  be  not  thereby  impaired.2  But  where  he 
purchases  real  estate  or  other  property,  and  procures  the  title 
in  his  wife's  name  or  in  trust  for  her,  when  largely  indebted, 
the  validity  of  the  transfer  and  its  good  faith  may  well  be 
called  in  question,  especially  if  the  means  were  not  clearly  fur- 
nished from  her  separate  estate.3  And  wherever  he  buys  with 
his  own  borrowed  money,  the  wife's  lien  on  the  purchase  is  not 
easily  maintained  on  the  theory  of  his  future  intentions  on  her 
behalf.4 

While  the  wife  may  avoid  a  fraud  upon  her  as  against  all 
who  participated  therein,  it  is  held  that  a  valuable  creditor's 
rights  cannot  be  prejudiced  by  any  duress,  menace,  or  other  mis- 
behavior of  the  husband,  which  procured  them  the  wife's  secur- 

1  Kuhn  v.  Stansfield,  28  Md.  210;  money  to  pay  for  land,  took  a  convey- 
Wortman  v.  Price,  47  111.  22  ;  Mazouck  ance  to  herself,  and  then  joined  her 
v.  Northern  Iowa  R.  R.  Co.,  31  Iowa,  husband  in  a  mortgage  to  secure  the 
559  ;  Lichtenberger  v.  Graham,  50  Ind.  borrowed  money,  see  Pier  v.  Siegel,  107 
288;  Brooks  v.  Shelton,  54  Miss.  353;  Perm.  St.  502.  Lands  paid  for  out 
Mathews  v.  Sheldon.  53  Ala.  136  ;  Bes-  of  the  wife's  separate  property  eannot 
son  v.  Eveland,  2(i  N.  J.  Eq.  468;  105  be  reached  by  the  husband's  creditors. 
Penn.  St.  522;  31  Neb.  458.  As  to  the  62  Tex.  299;  63  Iowa,  620.  As  to  dis- 
wife's  gratuitous  undertaking  to  subject  training  the  wife's  goods  for  rent  due 
her  property  to  her  husband's  debts,  by  her  husband,  see  62  Md.  458.  See, 
the  Pennsylvania  rule  is  that  equity  will  further,  14  Lea,  209. 

not  enforce  it,  but  leave  the  parties  to  Dedication  of  a  street  by  a  married 

their  legal  remedies.     White's  Appeal,  woman  may  be  presumed  appurtenant 

36  Penn.  St.  134.  to  her   deed.     101    Ind.    200.     A    hus- 

2  Jackson  v.  Jackson,  91  U.  S.  122.  hand,  without  authority,  cannot  submit 

3  See  Postnuptial  Settlements,  c.  to  arbitration  on  the  boundary  of  the 
14;  Snow  v.  Paine,  114  Mass.  520.  wife's  land.  Benedict  v.  Pearce,  53 
See,   further,   Schouler,   Hus.    &  Wife,  Conn.  496. 

§282.  *  66  Ala.  217;  Lochman  v.  Brobst, 

As  to  the  wife's  rights  against  a  hus-     102  Penn.  St.  481. 
band's  creditors,  where   she    borrowed 

16  241 


§  155  THE  DOMESTIC   RELATIONS.  [PART   II. 

ity,  if  it  was  without  such  creditor's  instigation,  knowledge,  or 
consent.1  It  is  otherwise  if  the  latter's  instigation,  knowledge, 
or  consent  appear.2  But  when  the  husband  makes  a  void  trans- 
fer as  his  wife's  trustee,  it  is  held  that  she  can  follow  the  invest- 
ment into  other  hands.3  Or  she  may  have  him  removed  from 
his  trusteeship  for  suitable  cause.4 

A  husband  has  no  right  to  agree  secretly  with  the  purchaser 
of  his  wife's  separate  property  for  a  portion  of  the  real  consider- 
ation, understating  the  nominal  consideration  to  the  wife  ;  nor 
to  make  other  secret  arrangements  hostile  to  her  interests  with 
those  he  deals  with  on  her  behalf ;  nor  can  he  use  her  separate 
estate  without  her  consent  to  pay  his  own  debts  or  invest  for 
his  own  benefit ;  nor  can  he  personally  antagonize  his  interests 
as  her  representative  ;  for  all  this  is  a  breach  of  faith  as  agent  or 
trustee.5  Fraud,  coercion,  abuse  of  marital  confidence  can  be 
alleged  by  the  wife  against  an  unworthy  husband  in  support  of 
her  title,  injuriously  impaired  by  him,  whether  she  transferred 
absolutely,  or  as  security  for  his  debts.6  A  negotiable  instru- 
ment executed  by  or  taken  in  the  name  of  a  trustee  of  a  married 
woman  will  be  regarded  in  equity  as  manifesting  the  trust  for 
her  benefit.7  Even  promissory  notes  or  stock  taken  in  the  hus- 
band's name  are  open  to  explanation  ;  and  evidence  aliunde  may 
show  that  they  belonged  to  the  wife's  separate  property.8  Sub- 
ject, perhaps,  to  equities  of  bona  fide  third  parties  for  considera- 

1  Childs    v.    McChesney,    20    Iowa,  3  George  v.  Ransom,   14  Cal.  658; 

431  ;  Edgerton  v.  Jones,  10  Minn.  427  ;  Bates  v.  Brockport  Bank,  89  N.  Y.  286. 

Nelson    v.    Holly,    50    Ala.   3;    Singer  See  §  157. 

Man.  Co.  v.  Hook,  84  Penn.  St.  442  ;  4  Rainey  v.  Rainey,  35  Ala.  282.    So 

Maruton    v.    Brittenham,    76    111.    511;  with  any  other  trustee  of  her  separate 

Conn.    Life   Ins.   Co.    v.    McCormick,  property.    Johnson  v.  Snow,  5  R.  I.  72. 

n  Cal.  480;  Hull  v.  Sullivan,  63  Ga.  6  Beandry   v.   Felch,  47   Cal.   183; 

\ji>.     See  defence  <>f  limine  influence  Amett  v.  Glenn,  52  Ark.  253 ;  Rnnyon 

Bet  up  by  wife,  in  52  Wis.  337.     A  lins-  v.  Snell,  116  Ind.  104;  33  S.  C.  325. 

band    procuring    his    wife's    signature  (1  Sharpe   ».    McPike,  62  Mo.   300; 

to  a    mortgage   is   estopped   to  set   tip  Darlington's  Appeal,  86  Penn.  St.  512; 

her   incapacity.     Hill    v.    Hill,   53   Vt.  99  Mo.  407  ;  90  Ala.  546. 

7  Lewis  v.  Harris,  4  Met.  (Ky.)  353. 

-  Line  v.   Blizzard,  70  Ind.  23;  107  8  Bnck  v.  Gilson,  37  Vt.  653;  Con- 

Mo.  270;  Ilaskit  v.  Elliott,  58  End,  493.  rad  v.  Shomo,  44  Penn.  St.  193;  Baker 

See  the  wife's  superior  equity  traced  v.   Gregory,  28  Ala.   544;    Fowler  v. 

through    various   dealings,  in   %   Ala  Mice,  31  Intl.  258,  91  Ala.  198. 

242 


CHAP.  XI.]     DOMINION  :  WIFE'S  STATUTORY  PROPERTY.    §  155 

tion  without  actual  or  constructive  uotice  of  the  trust,  in  strong 

7  O 

instances,  the  wife's  rights  are  protected  in  equity  against  her 
husband's  misdealings  with  her  fund.1  And  if  a  husband  holds 
a  legal  title  to  land  in  trust  for  his  wife  or  family,  his  sale  and 
transfer  of  the  proceeds  to  other  land,  taken  without  due  con- 
sent in  his  own  name,  will  not  enable  his  general  creditors  to 
seize  and  appropriate  it  for  his  debts.2  The  husband  as  a  rule 
cannot  incumber  his  wife's  separate  estate  without  her  consent;3 
yet  the  question  recurs  whether  the  law  of  agency  should  take 
here  its  usual  scope. 

Certain  States  following  the  English  equity  doctrine,  avoid 
close  inquisition  into  the  husband's  management  of  his  wife's 
property,  by  limiting  the  time  during  which  the  husband's 
receipt  of  the  rents,  profits,  or  income  shall  charge  him,  unless  he 
expressly  agrees  otherwise.4  It  is  held,  too  that  a  wife,  by  allow- 
ing her  husband  for  a  long  series  of  years  to  appropriate  to  his 
own  use,  or  their  joint  use,  the  income  of  her  separate  estate, 
forfeits  her  right  to  compel  him  to  account,  until  at  all  events 
she  revokes  such  permission,  and  then  only  from  the  date  of  rev- 
ocation.5 Such  a  rule  is  very  desirable  for  preserving  domestic 
peace  and  ensuring  the  husband's  estate  after  death  against  du- 
bious claims ;  for  otherwise,  as  we  have  intimated,  and  apart 
from  the  wife's  undue  delay  or  her  presumed  assent  to  house- 
hold expenses  or  to  a  gift  to  her  husband,  and  after  deducting 
his  charge  for  services,  the  husband,  where  regarded  as  purely  an 
agent,  is  obligated  to  account.     Even  admitting,  however,  the 

1  See  Moulton  v.  Haley,  57  N.  H.  maker.  61  N.  H.  612.  As  to  authority 
184.  to  make  her  a  lessee,  see  Sandford  t>. 

2  Shippen's  Appeal,  80  Perm.  St.  Pollock,  105  N.  Y.  450.  He  cannot  iu- 
391  ;  Porter  v.  Caspar,  54  Miss.  359  ;  dorse  in  her  name  without  authority. 
Schouler,  Hns.  &  Wife,  §  284 ;  McCon-  107  Mo.  270. 

nell  v.  Martin,  52  Ind.  434.  As  to  a  3  Harvey  v.  Galloway,  48  Mich. 
sale  of  goods  where  the  seller  did  not  531 ;  99  Mich.  534. 
know  that  the  husband  was  simply  the  4  One  year  from  date  of  such  receipt 
wife's  agent,  see  70  Ga.  385.  A  has-  is  the  usual  limitation.  Hill  v.  Bugg, 
hand  duly  authorized  may  render  the  52  Miss.  397  ;  102  N.  C.  413.  But  see 
wife  liable  on  a  note  signed  as  her  Georgia  rule,  contra;  Oliver  v.  Ham- 
agent.     61   Wis.   660.     The  wife's   an-  niond,  85  Ga.  323. 

thority  given   to  the  husband  to  sign  5  Lyon  v.  Green  Bay  R  ,  42  Wis. 

her  name  as  surety  does   not   include  548;    Reeder   v.   Flinn,   6    Rich.    216; 

authoritv  to  sign  her  name  as  principal  Lishey  v.  Lishev,  2  Tenn.  Ch.  5. 

"243 


§  157  THE   DOMESTIC   RELATIONS.  [PAET   II. 

income  his,  the  husband  may  show  and  execute  an  intention  of 
preserving  such  income  as  his  wife's  separate  property ; 1  or, 
on  the  other  hand,  of  investing  it  rather  for  the  benefit  of  the 
whole  family.2 

On  the  whole,  there  is  and  must  be,  throughout  this  transi- 
tion period,  conflict  in  the  authorities  as  to  the  effect  of  a  hus- 
band's receiving  the  proceeds  of  his  wife's  share  in  inherited 
property,  or  of  some  sale  or  investment  in  her  sole  right :  States 
which  abide  by  the  common  law  of  coverture  inclining  to  sus- 
tain his  ancient  right  of  reduction  into  possession,  and  pre- 
suming in  his  favor;3  and  States,  on  the  other  hand,  under 
the  impress  of  the  new  legislative  policy,  reserving  her  title, 
unless  she  plainly  and  voluntarily  divests  herself  of  separate 
rights.4 

§  156.  Married  Woman  as  Trustee.  —  Appointing  a  married 
woman  trustee  may  be  considered  objectionable  (apart  from 
equity  rules  of  constructive  trust),  while  the  law  yet  fails  to 
divest  her  of  all  coverture  disabilities,  so  as  to  make  her  both 
efficient  and  responsible  in  the  legal  sense.  Yet  it  is  held  in 
some  States  that  a  married  woman  may,  under  the  statutes,  hold 
an  estate  in  trust,  and  make  contracts  accordingly.5 

S  157.  Tendency  as  to  Wife  s  Binding  Capacity  ;  her  Estoppel 
or  Election. — There  is  now  little  or  no  limit  upon  the  wife's 
legal  capacity  to  bind  her  statutory  estate  to  the  discharge  of 
liabilities  created  on  account  thereof,  in  Ohio,  Wisconsin,  Mas- 
sachusetts, Xew  York,  Indiana,  Illinois,  and  some  other  States. 
In  Illinois  it  is  said  that  capacity  to  make  contracts  respecting 
her  separate  property  is  an  implication  of  law  and  not  of  ecpuity, 
and  consequently  all  contracts  made  by  her  within  the  scope  of 

i  Gill  v.  Woods,  81    111.  fi4;  Patten  Gourley,  95  111.206;  Jacobs  v.  Hesler, 

v,  Patten,  75  111.  410;  Bongard  v.  Core,  1 1-3  Mass.  157. 

82  111.  19;  supra,  §  141.  4  Nissley   v.    Heisey,    78    Penn.    St. 

-  Bristor  v.  Bristor,  93  Ind.  281.     As  418;  Penn   v.   Young,    10   Bush,    626; 

to  circumstances  of  accountability  un-  Mover's    Appeal,    77    Penn,   St.   4S2; 

der  which  the  wife's  preference  to  the  Archer  v.  Guill,  f>7   Ga.    195;   supra, 

:,  ,'•  creditors  was  sustained,  see  §118. 

113  Mass.  203;  30  Fed.  401.     And  Bee  As  to  the  husband's  agency  in  his 

1  armer'    Bank  v.  Jenkins,  <',5  Md.  245 ;  wife's  trade,  see  §  168,  post. 

113  Penn.  St.  209.  f'  Springer  v.    Berry,    17    Me.  330. 

;  Reade   v.   Earle,    12    Gray,    423;  See  Pemberton  v.  McGill,  I  Dr.  &  Sm 

Windsor  v.  Bell,  61  Ga.  <;7i ;  Neviuau.  2i'>(i. 


CHAP.  XI.]     DOMINION  :  WIFE'S  STATUTORY  PROPERTY.    §  lo7 

that  legal  capacity  are  legal  contracts,  and  cognizable  in  the 
courts  of  law.1  Some  of  the  latest  acts  explicitly  confer  upon 
married  women  the  power  to  deal  with  their  property  and  sue 
and  be  sued  as  though  single.  And  a  wife  may  at  least  bind 
her  separate  estate  for  the  payment  of  her  debts  or  for  the 
discharge  of  any  contract  she  may  make  for  her  own  use  and 
benefit. 

As  a  natural  result  of  the  first  modern  innovations  upon  the 
coverture  theory,  it  may  be  observed  that,  while  estoppel  does 
not  work  against  a  married  woman  so  readily  as  against  persons 
sui  juris,  it  is  held  in  various  recent  instances,  and  justly,  too, 
that  where  married  women  make  agreements  by  fraudulent 
means,  with  reference  to  their  separate  property,  and  thus  ob- 
tain inecpritable  advantages,  a  court  of  chancery  will  treat  them 
as  estopped  from  setting  up  and  relying  on  their  coverture  to 
retain  the  advantage.2  The  more  her  legal  disabilities  are 
stricken  away,  the  closer  does  she  approach  the  status  of  sui  juris. 
And  an  innocent  holder  for  value  of  a  wife's  signed  note  or  other 
obligation  has  been  protected  against  even  her  husband's  abuse  of 
authority  conferred  by  her  where  she  gave  full  opportunity  for 
the  fraud  or  dishonestly  clung  to  the  consequences.3  In  various 
instances  a  wife's  conveyance,  suretyship  engagement,  purchase, 
or  other  transaction  on  her  part,  while  considered  invalid  in  a 
sense,  has  been  held  to  be  at  most  merely  voidable  at  her  elec- 

1  Williams  v.  Hugunin,  69  111.  214;  §  150.  "Her  power  to  contract  meas- 
Schouler,   Ilus.  &  Wife,  §  288.  ures  the  extent  to  which   she  may  be- 

2  Coolidge  v.  Smith,  129  Mass.  554  ;  come  estopped."  48  Minn.  408;  13 
Patterson  v.  Lawrence,  90  111.  174;  5  Col.  229.  And  see  131  Ind.  267;  76 
Lea,  405;  17  Fed.  R.  760;  153  Peun.  Iowa,  633.  As  to  estopping  her  asser- 
St.  646;  Flanagin  v.  Hambleton,  54  tion  of  a  vendor's  lien,  see  89  Ala.  414  ; 
Md.  222  ;  145  Penn.  St.  628.  See,  fur-  85  Mich.  63.  Or  of  her  dedication  to 
ther,  Schouler,  Hus.  &  Wife,  §  288;  public  uses.  Holloway  v.  Louisville 
Hendershott  v.  Henry,  63  Iowa,  744;  R.,  92  Ky.  244;  101  Ind.  200.  Or  of 
Gray  v.  Crockett,  35  Kan.  66  ;  35  S.  C.  her  deed,  see  41  Minn.  165.  She  is 
42,  175.  Some  codes  now  declare  that  chargeable  with  her  laches.  55  Ark. 
a  married  woman  may  be  bound  by  an  85.  But  the  language  of  a  local  statute 
estoppel  like  any  other  person.  108  may  forbid  an  estoppel.  Parsons  v. 
Ind.  301.     But  cf.  60  N.  H.  568.  Rolfe  (1891),  N.  H.     As  to  an  increased 

Where  land  has  been   conveyed  to  estoppel  with  increased  rights  sui  juris, 

the  wife,  and  mortgaged  back  by  her  in-  see  St.  Louis  R.  v.  Foltz,  52  Fed.  627  ; 

formally  for  the  purchase  price,  the  wife  Dobbin  v.  Cordiner,  41   Minn.  165;  87 

cannot   retain  the   land  and  repudiate  Tenn.  89. 
her   consideration.      106    N.    C.    512  ;  3  Nelson  v.  McDonald,  80  Wis.  605. 

245 


§  158  THE   DOMESTIC    RELATIONS.  [PART   II. 

tion ;  so  that  she  may,  if  she  chooses,  stand  by  the  transaction, 
and  strangers  cannot  dispute  it,  especially  if  equitable  circum- 
stances exist  for  sustaining  what  she  did.1 

§  158.  Proceedings  for  Charging  "Wife's  Separate  Estate  ;  Su- 
ing and  being  Sued  as  a  Single  "Woman.  — The  married  women's 
acts  in  some  States  make,  as  might  be  anticipated,  a  radical 
change  in  the  character  of  the  practice  for  reaching  the  wife's 
separate  property.  According  to  the  English  practice,  and  that 
prevalent  now  or  formerly  in  most  States,  there  was  no  personal 
judgment  against  a  married  woman,  inasmuch  as  she  was  inca- 
pable  of  binding  herself  personally  by  her  engagements.  But  a 
chancery  decree  was  directed  against  the  separate  property  of 
the  wife,  declaring  the  separate  estate  vested  in  the  wife  at  the 
date  of  the  decree,  which  it  was  within  her  power  to  dispose  of, 
chargeable  with  the  payment  of  the  debt.2  The  debt  was  not  a 
lien  upon  the  wife's  separate  estate  until  made  so  by  decree  of 
the  court  of  equity,  and  the  lien  was  by  virtue  of  such  decree.3 
Under  such  proceedings  there  was  only  a  sort  of  equitable  exe- 
cution, the  decree  reaching  merely  property  which  the  wife  had 
power  to  bind,  and  no  personal  judgment  being  awarded  against 
her,  —  nothing  from  which  direct  personal  liability  on  her  part 
could  be  predicated.4  In  some  of  our  States  we  find  promises 
of  the  wife  enforceable  in  equity  against  her  separate  estate.5 

But  under  most  recent  married  women's  legislation  the  same 
judgment  is  frequently  required,  with  the  same  process  for  its 
enforcement,  as  would  be  awarded  if  the  woman  were  sole  ; 
saving,  perhaps,  the  usual  exemptions,  and  treating  the  wife's 
property  in  such  case  substantially  as  the  husband's  property 
might  be  treated  were  the  judgment  rendered  against  him  and 

1  Showman    v.   Lee,   79  Midi.  653;  J.  Eq.  109;  Prentiss  v.  Paisley,  25  Fla. 

Palmer  i\  Smith,  88  Ga.  84  ;  Nicholson  '.»27,  where  a  marriage  contract  gave 

v.  Heiderhoff,  50  Miss.  56;  6  Lea,  397 ;  her   a   right    to   control    her   separate 

53  Ark.  17^;  Johnson  v.  Jouchert,  1 2 1  estate:  Spencer  v.  Parsons,  89  Ky.  577  ; 

In. I.  105;  134  [nd.9.     Election  to  avoid  74  Ala.  513;  §§  58,  135,  136. 

-  privies  in  blood,  but  not         3  lb. ;     Schooler,    litis.    &    Wire, 

to  her  husband.     116  Ind.  408.  §  289. 

'  Johnson  v.  Gallagher,  •'(  De  G.  F.  4   But  see  English  form  of  order  of 

&  J.  520;  Collect  v.  Dickenson,  I,.  H.  judgment   in   Durrant    v.   Ricketts,   8 

li   Ch,   I>    687;  Patrick   v.  Littell,  86  Q.  B.  D.  177. 
Ohio  St.  79  ;  Armstrong  v.  Boss,  20  N.         6  Howe  v.  Cheslev,  56  Vt.  727. 

246 


CHAP.  XI.]    DOMINION  :  WIFE'S  STATUTORY  PROPERTY.    §  158 

the  liability  his.  And  where  such  is  the  practice  no  equitable 
circumstances  can  usually  be  alleged,  calling  for  the  intervention 
of  a  court  of  equity.1  Legal  attachment  on  mesne  process, 
or  by  way  of  legal  execution  against  a  married  woman,  may  be 
made  under  such  statutes  ; 2  or,  in  appropriate  instances,  the 
foreign  attachment  or  trustee  process  applied.3  Even  upon  her 
covenants  the  wife  may,  in  some  States,  be  sued  like  a  single 
woman;4  the  later  statute  often  requiring  her  to  sue  and  be 
sued  thus  on  her  contracts.  And  her  warrant  of  attorney  to 
confess  judgment  upon  a  contract  on  which  she  is  liable  under 
statute  has  been  held  binding  upon  her.6 

On  the  whole,  policy  still  disinclines  to  permit  a  personal 
judgment  to  be  rendered  against  a  married  woman,  even  on 
what  purports  to  be  her  personal  obligation.  Nor  is  her  own 
property  to  be  seized  without  having  her  liability  first  adjudged 
under  proceedings  to  which  she  is  a  party,  with  a  fair  oppor- 
tunity of  being  heard  and  defended.6  The  subjection  of  the 
wife's  property  under  these  acts  extends  to  all  her  statutory 
separate  estate,  or,  as  might  generally  turn  out,  through  the 
changing  of  equitable  into  statutory  estates  by  operation  of  legis- 
lation, all  of  her  separate  property.  And  by  this  means  the  old 
distinction  between  the  real  and  personal  separate  estate  becomes 
well-nigh  obliterated.7  But  in  the  present  state  of  the  law  each 
code  must  afford  its  own  rule. 

1  Stevens  v.  Reed,  112  Mass.  515;  Burdick  v.  Burdick,  16  R.  I.  495.  As 
Patrick  v.  Littell,  36  Ohio  St.  79  ;  Cook-  to  suits  in  contract  at  law  by  or  against 
son  v.  Toole,  59  111.  515;  Andrews  v.  her  with  personal  judgment,  see  50 
Monilaws,  15  N.  Y.  Supr.  65.  Ohio  St.  417  ;  104  Mo.  44. 

2  See  language  of  Hoar,  J.,  in  Wil-  5  Feywood  v.  Shreve,  44  N.  J.  L. 
lard  v.  Eastham,  15  Gray,  328;  Gall  v.  94.  She  ought  to  defend,  and  not  per- 
Fryberger,  75  Ind.  98;  16  R.  I.  495.  mit  judgment  to  be  taken  and  then  try 

3  Powers  i'.  Totteu,  42  N.  J.  L.  to  avoid  the  judgment.  92  Mich.  427  ; 
442.  132    Ind.    63.     But    cf.    144    Penn.    St. 

4  Worthington    v.   Cooke,    52    Mo.  215. 

297  ;  Wright  v.  Burrows,  61   Vc.  390.  As  to  actions  of  replevin  to  recover 

Whenever  a  statute  allows  a  married  the  wife's  property,  see  60  Md.  426 ;  75 

woman  to  sue  alone,  she  must  sue  alone.  Ind.  98. 

61  Vt.  390.     And  this  rule  applies  often  6  Edwards  v.  Woods,  131  N.  Y.  350. 

in  the  latest  legislation  as  to  her  action  7  For  various  points  of  modern  s.tatn- 

for  slander  or  other  tort ;  she  sues  with-  tory   practice,   see    Schonler,    IIus.    & 

out  joinder  of  her  husband.     62  Vt.  243.  Wi%  §  289  ;  supra,  §  144  a. 
For  a  judgment  against  her  in  tort,  see 

247 


§  160  THE    DOMESTIC    RELATIONS.  [PART   II. 

§  158  a.  Promise  of  a  Third  Person  to  pay  a  Married  "Woman's 
Debt.  —  The  moral  obligation  of  a  married  woman  to  pay  a  debt 
which  cannot  be  enforced  against  her  is  a  good  consideration  for 
the  promise  under  seal  of  a  third  person  to  pay  it.1 

§  159.  English  Married  Women's  Acts;  Wife's  Disposition. — 
In  England  the  married  women's  property  act  of  1870,  with  its 
later  amendments,  indicated  some  change  of  parliamentary  pol- 
icy in  the  same  practical  direction.  But  the  English  courts 
still  inclined,  as  would  the  American  under  statutes  of  dubious 
import,  to  render  the  separate  property  of  the  wife  liable  by 
subjecting  her  to  the  ordinary  process  of  law  and  equity.2  The 
wife  cannot  be  sued  alone  in  respect  of  her  separate  estate  in 
the  common-law  courts,  under  the  act  of  1870,  for  the  price  of 
goods  sold  her  during  coverture,  but,  as  formerly,  the  husband 
must  be  joined.3 

The  later  English  act  of  1882  enlarges  the  wife's  powers  and 
liabilities  with  reference  to  her  separate  property.4  But  the 
judicial  disposition  is  still  somewhat  conservative  ;  and  a  mar- 
ried woman  is  held  incapable  of  rendering  herself  liable  in 
respect  of  her  separate  property  on  any  contract  unless  she  has 
some  separate  property  at  the  time  the  contract  is  made ;  the 
party  seeking  to  hold  her  liable  must  show  this  fact.5 


CHAPTER   XII. 


THE    WIFE'S    PIN    MONEY,    SEPARATE    EARNINGS,    AND    POWER    TO 

TRADE. 

§  160.  The  Wife's  Pin  Money.  —  The  wife's  pin-money  con- 
stitutes a  feature  of  English  marriage  settlements  in  modern 

i  Leonard  v.  Duffin,  94   Penn.   St.         4  Act  45  &  46  Vict.  c.  75.    This 

218.  Btatute  provides  that  the  wife's  contract 

;  A'<  parte    Holland,   L.    It.    9   Oh.  shall  hind  whatever  Beparate  property 

A jip.  307.  she  may  afterwards  acquire  as  well  as 

»  Hancocks  v.  Lablache,  20  W.  R.  that  at  the  date  of  the  contract. 
402;  Davies  v.  Jenkins,  L.  R.  6  Ch.  I).         6  Palliser  t>.Gurney,19  Q.  15.  I).  519; 

728.  Deakin  v.  Lakin,  30  Ch.  1).  169. 

248 


chap,  xrr.]  wife's  pin-money.  §  1G0 

times.  Pin-money  may  be  defined  as  a  certain  provision  foi 
the  wife's  dress  and  pocket,  to  which  there  is  annexed  the  duty 
of  expending  it  in  her  "  personal  apparel,  decoration,  or  orna- 
ment." 1  It  differs  from  the  wife's  separate  estate  in  being  a 
gift  subject  to  conditions,  and  not  at  her  absolute  disposal.  It 
differs  from  her  paraphernalia  in  being  subject  to  her  control 
during  marriage,  and  not  awaiting  the  husband's  death.2  The 
exact  period  when  pin-money  was  first  introduced  into  England 
is  not  known.  Lord  Brougham  inclines  to  ascribe  it  to  the 
feudal  times.3  But  there  is  equally  good  authority  for  fixing  the 
date  at  the  Eestoration ;  and  the  lawyers  resort  to  Addison's 
"  Spectator "  in  proof  of  the  latter  supposition.4  The  popular 
name  of  this  provision  scarcely  suggests  its  real  significance ; 
for,  so  far  from  being  a  petty  allowance,  it  is  often  of  the  most 
liberal  amount  imaginable.5 

The  subject  of  the  wife's  pin-money  seems  to  have  received 
little  attention  in  this  country.6  And  in  England  few  cases  of 
the  sort  have  ever  arisen.  It  is  found  more  convenient  in  mar- 
riage contracts  to  settle  a  certain  allowance  upon  the  wife  by 
way  of  separate  estate,  which  allowance  is  subject  to  the  usual 
incidents  of  separate  property.  Decisions  as  to  pin-money  and 
separate  estate  are  frequently  confounded.7 

1  Per  Lord  Langdale,  Jodrell  v.  husband's  gift  he  should  sue  for  injury. 
Jodrell,  9  Beav.  45 ;  Howard  v.  Digby,  Smith  v.  Abair,  87  Midi.  62.  And 
2  CI.  &  Fin.  654.  even  though  the  wife's  general  property, 

2  Maeq.  Hus.  &  Wife,  318;  Peachey,  he  may  sue  by  virtue  of  a  bailee's  or 
Mar.  Settl.  298;  post,  208.  But  the  special  ownership.  Jacksonville  R.  v. 
■word  "  paraphernalia  "  seems  to  be  used  Mitchell  (1894),  Fla. 

often  witli  the  inter  vivos  sense.     [1894]  A  wife's  letters  are   her  own,   and 

W.  N.  207.     And  by  paraphernalia  is  the  husband  has  no  right  to  open  them. 

thus  signified  generally  the  wife's  ap-  64  Vt.  450;  Grigsby  v.  Breckenridge,  2 

parel   and   ornaments   suitable    to   her  Bush,  480;  L.  R.  13  Eq.  511. 

degree.     These  articles  are  by  common  3  2  CI.  &  Fin.  676. 

law   subject   to   the   husband's   control  4  Spectator,  295.    See  Peachey,  Mar. 

during  life,  though  he  may  give  them  to  Settl.  300;  Sugd.  Law  Prop.  165. 

his  wife,  but  modern  legislation  affects  5  In  one  reported  English  case,  by 

the  subject.     Some  statutes  now  permit  no  means  recent,  £13.000  a  year  was 

the  w-ife  to  sue  alone  for  loss  or  injury  to  secured  to  the  wife  as  her  pin-money. 

such  articles,  —  as  for  instance,  to  her  See  2  Russ.  1,  and  n.  to  Macq.  Hus.  & 

trunk  of  wearing  apparel;  and  legisla-  Wife,  318. 

tion  often  confers  the  ownership  upon  the  6  But  see   Miller  v.  Williamson,  5 

wife  as  her  separate  property  besides.  Md.  219. 

But  independently  of  statute  and  the  7  See  Lord  Brougham,  in  Howard  v- 

249 


§162  THE    DOMESTIC    RELATIONS.  [PART   II. 

§  161.  Wife's  Housekeeping  Allowance.  —  The  wife  was  for- 
merly supposed  also  to  gain  a  title  to  savings  out  of  her  house- 
keeping allowance.1  So  where  the  husband  allowed  the  wife  to 
make  profit  of  butter,  eggs,  poultry,  and  other  farm  produce, 
which  allowance  he  called  her  pin-money,  it  was  held  that  she 
acquired  a  separate  ownership  therein.2  Bat  these  cases  rest 
upon  questionable  authority.3  And  more  recently  it  has  been 
decided  that,  where  the  wife  of  a  farmer,  with  his  knowledge 
and  sanction,  deposited  the  produce  of  the  surplus  butter,  eggs, 
and  poultry  with  a  firm  in  her  own  name,  and  he  called  it  "  her 
money,"  and  on  his  death-bed  gave  his  executor  directions  to 
remove  the  money,  and  do  the  best  he  could  with  it  for  his 
wife,  such  evidence  was  insufficient  to  establish  a  gift  between 
them,  and  that  the  husband  had  made  neither  the  firm  nor  him- 
self trustee  for  his  wife.4  In  all  cases  of  this  sort  the  husband's 
permission,  he  not  having  deserted  her,  constitutes  an  important 
element  of  the  wife's  title.  And  the  mere  fact  that  a  wife  is  in 
the  use  and  enjoyment  of  clothing,  or  other  personal  property, 
is  held  insufficient  in  the  absence  of  legislation  to  establish  her 
right  to  a  separate  estate  therein.5  Such  ownership  on  her 
part  is  asserted  most  strongly  as  against  her  husband's  sub- 
sequent creditors,  and  where  his  gift  of  a  housekeeping  allow- 
ance is  the  foundation  of  her  separate  investment.6 

§  162.  Wife's  Earnings  belong  to  the  Husband  ;  Legislative 
Changes,  &c.  —  Indeed,  the  well-settled  principle,  both  of  law 


l>iL'!>y,  2  CI.   &  Fin.  670,  commenting  *  Paul  Neal's  Case,  Prec.  in  Ch.  44, 

upon  2   Roper,  Hub.  &  Wife,   133.     In  297.     But  see  Tyrrell's  Case,  Freem. 

this   leading   case,  which   went  to   the  304. 

il  insi     of     Lords   in    1834,    the   whole  2  Slanning    v.    Style,    3    P.    Wms. 

subject  receives  ample  discussion.     Its  337. 

main  decision  was  to  the  effect  that  the  8  See  Macq.  Has.  &  Wife,  320. 

personal    representatives  of    the    wife  4  Mews  v.  Mews,  15  Bear.  520.    See 

( Id  not  recover  arrears.     The  correct-  McLean  y.  Longlands,  5  Vos.  78,  cited 

.1'  it,-  |princi].le  has  heen  questioned  herein  with  approval.     And  see  Rider 

■lie  writers.     In  general   the  usual  v.  Hulse,  33    Barb.  264,  for  a  similar 

equity  rule  against  claiming  more  than  American  decision. 

arrears  appears  to  apply  to  6  State  v.  Pitts,  12  S.  C.  180;  supra, 

separate   estate    and    pin-money   alike.  §  82. 

In    other  ways,   too,    the   wife's   claim  °  Carpenter  v.   Franklin,   89  Term. 

be    barred.      Schouler    Hon.    &  142. 

Wife,  §  292. 

250 


CKAP.  XII.]  WIFE'S   SEPARATE   EARNINGS.  §  162 

and  eqnit}',  is  that,  in  absence  of  a  distinct  gift  from  the  hus- 
band, all  the  wife's  earnings  belong  to  him,  and  not  to  herself  by 
virtue  of  his  liability  to  support  his  family.1  But  by  recent 
statutes,  enacted  in  many  of  the  United  States,  married  women 
are  allowed  the  benefits  of  their  own  labor  and  services  when 
performed,  or  even  contracted  to  be  performed,  on  their  sole  and 
separate  account,  free  from  all  control  or  interference  of  a  hus- 
band.2 The  English  married  women's  act  of  1870,  moreover, 
recognizes  the  wife's  right  to  her  separate  earnings  ;3  while  that 
of  1882  extends  that  right  still  more  liberally.4  These  statutes 
vary  somewhat  in  their  terms.  The  amount  the  wife  may  thus 
acquire  is  in  certain  States  limited  to  a  specific  sum,  and 
statutes  sometimes  discriminate  so  as  to  protect  simply  her 
earnings  derived  from  labor  for  another  than  her  husband.5 

The  presumptions  here  concerning  the  wife's  title  to  her 
earnings  seem  to  be  much  the  same  as  in  other  separate  prop- 
erty purporting  to  belong  to  her.6  Questions  of  identity,  too, 
in  tracing  an  investment  of  earnings,  are  applicable,  as  in  other 
cases  of  separate  property.  There  is,  however,  apparently  less 
favor  shown  by  our  courts  to  the  legislative  grant  of  separate 
earnings,  than  to  that  of  acquisitions  to  a  wife's  separate  use 
from  other  sources ;  and  still  less,  as  we  shall  soon  see,  to 
statutes  extending  the  wife's  right  of  acquiring  earnings  to  a 


1  For  the  old  common-law  rule,  see         4  Acts  45  &  46  Vict.  c.  75. 

supra,  §  81  ;  Jones  v.  Reid,  12  W.  Va.  5  Snow  v.  Cable,  19  Hun,  280.  The 
350  ;  Douglas  v.  Gausman,  68  111.  170 ;  Pennsylvania  act  of  1887  is  broadly  con- 
Kelly  v.  Drew,  12  Allen,  107  ;  Glaze  v.  strued  in  a  wife's  favor.  156  Penn.  St. 
Blake,  56  Ala.  379.  337.    But  see,  contra,  a  statute  expressed 

2  See  latest  statutes  of  New  York,  in  general  terms,  St.  Louis  R.  v.  Henson, 
Massachusetts,    Rhode    Island,    Mary-  58  Fed.  531. 

land,  Kansas,  and  California.     And  see         A  married  woman  who  washes  clothes' 

Cooper  v.  Alger,  51   N.  H.  172;  Fowle  for  money,   living  with   her   husband, 

r.  Tidd,  15  Gray,  94  ;  Tunks  v.  Grover,  may  now   recover   for  the  loss  of  her 

57   Me.   586 :   Meriwether  v.   Smith,  44  time  in  an  action  for  personal  injuries. 

Ga.  541  ;  Berry  v.  Teel,   12  R.  I.  267  ;  Fleming  v.  Shenandoah,   67  Iowa,  505. 

Attebury   v.    Attebury,    8    Oreg.    224;  Suits  for  the  wife's  wages  may,  under 

Larimer  '•.  Kelley,  10  Kan.  2S8 ;  Boots  many  late  codes,  be  maintained  by  the 

v.    Griffith,    89    Ind.    246;    Jassoy    v.  wife  alone.     74  Ind.  82;  50  Mich.  77 ; 

Delius,  65  111.469;   Whitney  v.  Beck-  101  Penn.  St.  181. 

with,  31  Conn.  596  ,  52  Conn.  327.  6  Raybold  v.  Raybold,  20  Penn.  St. 

8  Supra,  §111;    Lovell  v.  Newton,  308;    Elliott  v.  Bently,    17    Wis.   591; 

L.  R.  4  C.  P.  D.  7.  Laing  v.  Cunningham,  17  Iowa,  510. 

251 


§  162  THE   DOMESTIC   RELATIONS.  [PART  II. 

permission  to  embark  in  business  on  her  own  account.  The 
presumption  is  said  to  be  that  a  wife's  services,  rendered  even 
to  her  own  mother  or  to  some  one  in  the  household,  on  a  basis 
of  compensation,  were  given  on  the  husband's  behalf.1  The 
wife  must  show  that  she  rendered  the  service  on  her  own 
account,  and  not  conjointly  with  the  husband  or  for  his  benefit;2 
and  his  waiver  of  his  own  claims  should  also  appear  on  her 
behalf.  And  where  the  proceeds  of  her  earnings  have  been  so 
mixed  up  with  her  husband's  property  as  not  to  be  easily  dis- 
tinguishable, the  disposition  is  to  regard  the  whole  as  belonging 
to  the  husband.3  The  idea,  moreover,  is  not  favored,  of  permit- 
ting a  wife  to  forsake  the  matrimonial  domicile,  or  neglect  her 
household  duties,  without  her  husband's  consent,  for  the  purpose 
of  acquiring  earnings  for  her  separate  use,  especially  if  her 
husband  be  still  legally  bound  to  support  her  by  his  own  labor.4 
It  may  be  added  that,  in  general,  statutes  which  authorize 
married  women  to  hold  property  acquired  by  gift,  grant,  or  pur- 
chase, from  any  person  other  than  the  husband,  do  not  carry 
the  wife's  earnings  by  implication.5 

Independently,  therefore,  of  statutes  which  plainly  secure  to 
married  women  their  separate  earnings  under  the  circumstances, 
it  is  held  that  an  agreement  between  the  wife,  with  the  knowl- 
edge and  consent  of  her  husband,  and  a  third  person,  for  nurs- 
ing and  attention,  the  stipulation  being  that  she  shall  be  paid 
what  her  services  are  reasonably  worth,  gives  to  the  wife  no 
title  as  against  her  husband,6  nor  right  to  maintain  her  separate 


1  Morgan   v.  Bolles,  36  Conn.  175;  Smith,  37  Mo.  394;  Grover  v.  Alcott, 

Howe  v.  Howe,  88  Mich.  91.  11    Mich.  470;  91    Ga.  813;  Baxter  >: 

-  Neale   <•.   Hermanns.  65   Md.  474;  Rrickett,  27  Ind.  490;  Bear  v.  Hays,  36 

Triplet*  v.  Graham,  50  Iowa,  135.  111.  280. 

Quidort  v.  Pergaux,  3  C.  E.  (ireen,  °  Woodbeck  v.  Havens,  42  Barb.  66. 

472;    McCluskey  >-.  Provident  Institu-  And  this,  even  though    the    husband 

fcion,  103  Mass.  300;  Kelly  v.  Drew,  12  makes  of  his  house  a  sort  of  hospital.. 

Allen,  107.  and  his  wife  assists  him.     Reynolds  v. 

4   Douglas  '•.  Gausman,  G8  Til.  170;  Robinson,  64  N.  V.  589.     And  see  El- 

Mitcli.1l   o.   Seitz,  94  U.  S.  580.     But  liott  v.  Bently,  1 7  Wis.  591 ;  Duncanu. 

-       Duncan  v.  Cashin,  L.  R.  10  C.  V.  Roselle,    15    Iowa,   501;   McKavlin    v. 

554  Bresslin,    8    Gray,    177.     Nursing    or 

Rider    v.    Bulse,    33    Barb.    264;  doing  washing  for  a  boarder  in  the 

Brittain   v     Crowther,    54    Fed.    295;  house  or  taking  a  boarder,  gives  ii" 

11     I  v.  White,  46  N.  II.  15;  Merrill  v.  right  of    action  to   husband    presuni- 

252 


CHAP.  XII.]  WIFE'S   POWER   TO   TRADE. 


§1G3 


action.1  It  is  he  alone  who  sues  for  such  services  at  the  com- 
mon law.2  A  husband's  investment  of  his  wife's  wages  for  his 
own  benefit  is  still  held  subject  to  his  creditors  in  a  few  States 
where  the  common  law  prevails  on  that  point.3  On  general 
principles  of  equity,  however,  not  to  add  of  marital  legislation, 
the  husband  may,  in  this  country,  as  in  England,  create  in  his 
wife  a  separate  estate  in  the  proceeds  of  her  own  toil ;  the 
validity  of  such  a  gift,  as  against  creditors,  being  subject  to  the 
same  rules  which  apply  to  other  voluntary  conveyances.4  Such 
a  gift  on  his  part,  once  made,  the  husband  cannot  annul  by  a 
subsequent  investment  of  the  proceeds  in  his  own  name.5 


§  1G3.      Wife's  Power  to  Trade  or  Exercise  a  Profession 


Ear- 


lier English  Rules.  —  The  wife's  power  to  carry  on  a  separate 
trade  is  another  topic  known  long  ago  to  the  law  of  England ; 


ably  rather  than  to  wife.  Barnes  v. 
Moore,  80  Mich.  585 ;  Poffenberger  v. 
Poffenberger,  72  Md.  321.  And  espe- 
cially where  the  husband  defrayed  all 
the  household  expenses  and  purchased 
the  supplies.  Bloodgood  v.  IMeissner, 
84  Wis.  452. 

1  See  Beau  v.  Kian,  6  Thomp.  &  C. 
(N.  Y.)  484.  And  see  Skillman  >\ 
Skillman,  15  N.  J.  Oh.  478;  Schouler, 
Hns.  &  Wife,  §  295. 

2  Porter  v.  Dunn,  131  N.  Y.  314; 
130  N.  Y.  497.  Damages  For  negli- 
gently diminishing  the  wife's  earning 
capacity  presumably  belong  to  the  hus- 
band as  one  entitled  to  the  fruits  of  the 
wife's  labor.  Uransky  v.  Dry  Dock  It., 
118  N.  Y.  304.  So  is  it  where  the  wife 
sues  now  for  tort  in  damages.  130  N.  Y. 
497.  And  see  St.  Louis  R.  v.  Hensou, 
58  Fed.  R.  531. 

3  81  Ala.  489,  549 ;  Leinbach  v. 
Templin,  105  Penn.  St.  522.  But  as  to 
garnishing  her  wages  where  mingled 
with  separate  property,  see  74  Ala.  446. 

4  Pinkston  v.  McLemore,  31  Ala. 
308;  Neufville  v.  Thompson,  3  Edw. 
Ch.  92 ;  Barron  v.  Barron,  24  Yt.  375  ; 
34  N.  J.  Eq.  124;  Richardson  v.  Mer- 
rill, 32  Yt  27;  Jones  v.  Reid,  12  W. 
Va  350;  Glaze  v.  Blake,  56  Ala.  379; 
Schouler,  Hus.  &  Wife,  §  296.  See 
Postnuptial   Settlements,  c.    14,  where 


the  rule  is  more  fully  stated.  A  wife 
can  hire  out,  with  her  husband's  con- 
sent, and  can  sue  for,  recover,  and  keep 
her  earnings.  Benson  v.  Morgan,  50 
Mich.  77  ;  Wren  v.  Wren,  100  Cal.  276. 
The  validity  of  a  husband's  gift  is  best 
upheld  against  his  subserpient  creditors. 
Bowman  v.  Ash,  143  111.  649. 

Simply  permitting  his  wife  know- 
ingly to  receive  and  retain  her  earn- 
ings and  to  loan,  deposit,  and  invest 
them  for  her  own  benefit  and  in  her 
owu  name,  is  sufficient  as  against 
the  husband's  creditors.  Carpenter  v. 
Franklin,  89  Tenn.  142 ;  Grantham  v. 
Grantham,  34  S.  C.  504.  And  so,  too, 
in  a  clear  case  as  against  the  husband 
or  his  administrator.  Potter  v.  Potter, 
64  Vt.  298.  As  to  separation  of  the 
pair,  circumstances  may  determine,  ir- 
respective of  statute  ;  but  a  separation 
under  circumstances  repelling  the  idea 
of  a  gift  of  earnings  by  the  husband 
does  not  exclude  his  marital  right.  86 
Ala.  168. 

5  Rivers  v.  Carleton,  50  Ala.  40 ; 
White  v.  Oeland,  12  Rich.  308;  Mason 
v.  Dunbar,  43  Mich.  407.  Wife's  earn- 
ings are  sometimes  bestowed  on  her  by 
statute,  where  the  husband  deserts. 
Schouler,  Hus  &  Wife,  §  21)7  ;  79  Cal. 
200.  See  further,  as  to  earnings,  lb., 
§298. 

253 


§  163  THE   DOMESTIC    RELATIONS.  [PART    II. 

and  in  this  respect  our  American  legislation  of  tlie  present  day 
seems  to  have  been  somewhat  anticipated.  The  wife's  lawful 
power  to  carry  on  a  trade  on  her  own  account,  independently  of 
her  husband,  like  most  of  her  other  separate  privileges,  is 
founded  at  the  common  law  upon  contracts  made  with  her  in 
derogation  of  the  husband's  marital  rights.  It  appears  that  a 
wife  desiring  to  go  into  business  on  her  own  account,  makes  an 
agreement  with  her  husband.  When  the  agreement  is  made 
before  marriage,  it  will  bind  the  husband  and  his  creditors  ; 
when  made  during  the  coverture,  it  binds  the  husband  only,  and 
is  void  against  his  creditors.1  And  the  husband  will  be  liable 
for  the  debts,  if  it  appeared  that  he  participated  with  the  wife 
in  the  benefits.2  Separate  trading  was  also  permitted  the  wife 
by  the  "  custom  of  London;"  and  herein  she  was  regarded  as 
liable  to  arrest  and  imprisonment  for  debt  without  her  husband, 
and,  moreover,  might  be  declared  a  bankrupt.3  And  if  the  hus- 
band had  any  concern  in  the  business,  the  wife  was  not  to  be 
treated  as  a.  feme  sole  in  respect  of  it.4 

Notwithstanding  these  provisions  of  the  law,  it  does  not  ap- 
pear that  separate  trading  in  England,  prior  to  the  innovations 
introduced  with  the  married  women's  act  of  1870,  was  ever  very 
common.5  The  difficulties  in  the  way  of  establishing  credit, 
and  of  negotiating  securities,  on  the  wife's  sole  behalf,  were 
probably  found  insurmountable,  even  though  married  women 
might  be  found  anxious  to  assume  the  responsibilities  of  trade, 
with  its  incidental  imprisonment  for  debt.  The  judicial  evi- 
dence of  this  separate  trading  is  supplied  chiefly  by  the  misfor- 
tunes such  trade  entailed  upon  the  women  who  embarked  in  it. 
Even  where  the  wife  lived  apart  from  her  husband  (a  very  im- 

1   Macq.  Bus.  &  Wife,  .321  ;  2  Bright,  :i  Beard  v.  Webb,  2  15.  &  P.  97.     See 

Hub.  S  Wife,  292;  Lavie  >•.  Phillips,  3  2  Roper,  llus.  &  Wife,  124. 

Burr.  L783;  2  Roper,  Hus.  &  Wife.  165,  *  2    Bright,    Bus.  &  Wife,  77,   78; 

175,  and  case    cited.     See  Antenuptial  Lavie  p.  Phillips,  3  Burr.  1 7  7  ♦ "» ;  Schou- 

and     Postnuptial    Settlements,  cs.    13,  ler,  Hns.  &  Wife,  §  300. 

1  i.  :'  But  see  the  recenl  cases  <>f  Talbot 

-  Jarman  v.  Wooloton,  3  T.  R.  618;     v.  Marshfield,  L.  R.  3  Ch.  622;  Re  l'ea- 

2  Bright,  Hub.  &  Wife,  297 ;  Schouler,  cock's  Trusts,  L.  R.  10  Ch.  1).  490; 
Hub.  ft  Wife,  §  299;  Barlow  v.  Bishop,     Ashworth  o.  Outram,  L.   R.  5  Ch.  923; 

Petty  v.  Anderson,  2  Car,     Schouler,  Hub.  &  Wile,  §  301. 
ft  P.  38  ;  Vfacq   Hna  ft  Wife,  322. 

25  \ 


CHAP.  XII.]  WIFE'S    POWEB    TO   TRADE.  §   104 

portant  consideration),1  and,  having  her  separate  estate,  carried 
on  a  trade,  it  was  doubted,  in  an  important  case  of  which  we  have 
spoken  elsewhere,  whether  the  tradesman  furnishing  supplies  had 
any  demands  upon  that  estate  which  equity  could  recognize.2 

§  164.  Wife's  Power  to  Trade,  etc.  ;  American  Equity  Rule. — ■ 
This  doctrine  of  the  wife's  power  to  trade  comes  up  anew  in  the 
United  States  of  late  years,  with  our  recent  policy  in  favor  of 
the  independence  of  married  women.  And  the  rule  seems,  apart 
from  late  legislation,  to  be  well  established  in  the  United  States, 
that  the  husband,  in  pursuance  of  a  marriage  contract,  ante- 
nuptial or  postnuptial,  may  confer  upon  his  wife  the  right  to 
trade  for  her  exclusive  benefit.3  Nor  have  the  American  cases 
uniformly  insisted  upon  formal  contracts  for  this  purpose  be- 
tween husband  and  wife ;  seemingly  regarding  the  cpiestion  as 
one  of  mutual  and  bona  fide  intention  merely.4  The  husband's 
assent  is  in  general  necessary,  provided  they  live  together ;  and 
if  they  do  not,  different  considerations  apply.5  And  apart  from 
statute,  it  would  appear  to  be  the  general  rule  that,  unless  the 
husband's  consent  that  the  wife  carry  on  business  in  her  own 
name  is  based  upon  a  sufficient  consideration,  he  may  withdraw 
it  at  any  time  and  assert  his  common-law  rights.6 

On  the  other  hand,  in  North  Carolina  the  whole  doctrine  of 
separate  trading  is  expressly  repudiated.7     Indeed,  our  earlier 


1  See  Separation,  c.  \7,post.  Schouler,  Hus.  &  Wife,  passim,  §§  303, 

«  Of.  Bruce   &   Turner,   Lord  Jus-  304. 

tices  in  Johnson  v.  Gallagher,  3  De  G.  5  Cropsey   v.   McKinney,    30   Barb. 

F.  &  J.  494.  47  ;  Green  v.  Pallas,  1  Beasl.  267. 

3  Richardson  v.  Merrill,  32  Vt.  27;  6  Conklin  v.  Doul.  67  111.  355 ;  Crop- 
Tillman  v.  Shackleton,  15  Mich.  447;  sey  v.  McKinney,  30  Barb.  47  ;  Todd  v. 
Wieman  v.  Anderson,  42  Penn.  St.  31 1  ;  Lee,  16  Wis.  480  ;  Richardson  v.  Mer- 
Duress  v.  Horneffer,  15  Wis.  195;  rill.  32  Vt.  27 ;  Partridge  v  Stocker,  36 
James  o.  Taylor,  43  Barb.  530;  Wilt-  Vt.  108;  Penn  v.  Whitehead,  17  Gratt. 
haus  v.  Ludicus,  5  Rich.  326  ;  Uhrig  v.  503  ;  King  v.  Thompson,  87  Penn.  St. 
Horstman,  8  Bush,  172;  Cowan  v.  365.  Some  old  statutes  recognizing  the 
Mann,  3  Lea,  229.  wife  as  a,  feme  sole  trader  appear  to  have 

4  See  per  Redfield,  C.  J.,  in  Richard-  existed  in  Pennsylvania  and  South 
son  v.  Merrill,  32  Vt.  27 ;  Partridge  v.  Carolina.  Schouler,  Hus.  &  Wife, 
Stocker,  36  Vt.  108  ;  Penn  v.  Whitehead,  §  305.  Equitv  jurisdiction  to  grant  the 
17  Gratt.  503  ;  Tillman  v.  Shackleton,  privilege  not  favored.    75  Ala.  293. 

15  Mich.  447  ;  Wieman  v.  Anderson,  42  "  McKinnon  v.  McDonald,  4  Jones 

Penn.  St.  311;  Todd  v.  Lee,   16  Wis.  Eq.  1.     As  to  Alabama,  see  Kewbrick 

480;  Mayhew  v.  Baker,  15   Ind.  254;  v.  Dugan,  61  Ala.  251. 

255 


§  165  THE   DOMESTIC    EELATIONS.  [PART   II. 

American  cases  seem  to  have  regarded  with  very  little  favor 
the  doctrine  that  the  wife,  while  living  with  her  husband,  could 
carry  on  a  business  of  her  own  without  rendering  her  husband 
liable  and  subjecting  her  stock  in  trade  to  his  debts.1  And  the 
same  may  be  said,  at  this  day,  of  States  whose  legislatures  have 
not  freely  conceded  rights  to  married  women.2 

§  165.  Conclusion  from  English  and  American  Decisions. — 
The  conclusion  to  be  drawn  from  this  class  of  cases  is  that, 
modern  policy  having  once  conferred  upon  the  wife  large  powers 
both  as  to  the  acquisition  and  enjoyment  of  separate  property, 
as  wrell  as  the  right  to  invest  and  reinvest  the  same,  including 
their  rights  under  marriage  settlements,  married  women  natu- 
rally sought  business  opportunities  with  their  capital ;  and  thus 
the  modern  courts,  confronted  with  the  practical  results,  and 
aided  by  precedents  from  old  local  customs  or  old  legislation, 
were  drawn  into  the  practical  concession  of  trading  privileges, 
and  hence  of  trading  liabilities,  while  professing  to  deny  to  the 
wife  on  general  principles  the  right  to  engage  in  mercantile 
pursuits  without  more  explicit  statute  provisions  to  that  effect, 
and  while  requiring  the  assent  of  the  husband  to  appear.3 

When  it  is  clearly  for  the  wife's  advantage  to  reap  the  bene- 
fits of  her  business,  the  disposition  of  the  law  to  yield  them 
must  be  strong ;  but  where,  as  must  often  be  the  case,  she 
speculates  imprudently  and  becomes  deeply  involved,  the  court 
is  perplexed,  though  doubtless  anxious  to  relieve  her.  In  some 
leading  cases  upon  this  point,  we  find  the  married  woman  who 
has  subjected  her  property  to  the  demands  of  her  husband's 
creditors  permitted  to  stand  in  equity,  where  the  business  fails, 
as  a  sort  of  preferred  creditor,  for  her  manifest  benefit.4  The 
creditor's  claim  for  supplies  is  of  at  least  doubtful  equity  ;6  such 

1  Mackinley  v.  McGregor,  3  WTiart.  4  Perm  v.  Whitehead,  17  Gratt  503; 
:7-   Mini  ruses  cited.  Richardson  v.  Merrill,  32  Vt.  27  :  Cowan 

2  Godfrey  v.  Brooks,  5  Marring.  396 ;  v.  Mann,  3  Lea,  229.  See  Bellows  v. 
Woodcock   v.  Reed,  5  Allen,  207,  per  Rosenthal,  31  Ind.  116. 

curiam.  :'  Johnson  v.  Gallagher,  3   De  G.  F. 

3  Independently  of  statute  the  wife  &  J.  494;  Copeland  v.  Cunningham,  31 
may  purchase  goods  on  her  separate  Ind.  116.  But  see  Todd  v.  Lee,  16  Wis. 
credit  with  her  husband's  assent,  and  use  480;  Partridge  v.  Stocker,  36  Vt. 
them  in  asense  for  a  business  investment  108. 

on  bei  part.     150  Mass.  82  :  86  Ala.  124. 

266 


CHAP.  XII.]  WIFE'S    POWER    TO    TRADE.  §  166 

indebtedness  must  usually  be  pronounced  void  at  law ; 1  while 
even  equity  will  decline  to  enter  a  decree  establishing  a  charge 
on  the  wife's  estate,  unless  the  husband,  or  some  other  trustee 
for  the  wife,  is  properly  before  the  court.2  And  if  equity,  un- 
aided by  legislation,  preserves  the  separate  capital  thus  invested 
in  trade,  that  the  wife  may  enjoy  its  benefits,  it  is  otherwise 
with  profits  which  may  have  accrued  beyond  the  interest  of 
such  capital.3 

§  166.  Enlargement  of  "Wife's  Power  to  Trade  or  Exercise  a  Pro- 
fession under  Recent  Statutes.  —  But  the  doctrine  of  a  wife's  sepa- 
rate trading  is  at  this  day  to  be  considered  under  the  combined 
influence  of  modern  equity  decisions  as  to  the  wife's  jus  dispo- 
nendi,  and  the  recent  married  women's  acts.  The  English  act  of 
1870  declares  that  wages  and  earnings  of  a  married  woman  shall 
be  her  separate  property  ;4  under  construction  of  which  act,  the 
English  chancery  has  lately  sustained  the  right  of  a  butcher's 
wife  to  carry  on  her  husband's  business  upon  her  separate  re- 
sources, he  being  incapacitated  through  delirium  tremens,  and, 
while  at  home,  offering  no  obstruction  to  her  course.6  Again, 
both  under  the  act  of  1870  and  independently  of  it,  chancery 
protected  the  widow's  interests  as  against  the  husband's  admin- 
istrator, after  his  death,  in  a  valuable  fruit-preserving  business, 
which  she  had  commenced  while  single ;  and  continued,  after 
her  marriage  in  1874,  to  carry  on  in  her  maiden  name,  her  hus- 
band consenting.6  The  later  act  of  1882  explicitly  secures  to 
the  wife  as  her  separate  property,  her  wages,  earnings,  money  and 
property  gained  or  acquired  by  her  in  any  employment,  trade, 
or  occupation,  in  which  she  is  engaged,  or  which  she  carries  on 
separately  from  her  husband,  or  by  the  exercise  of  any  literary, 
artistic,  or  scientific  skill.7 

1  Conklin  v.  Doul,  67  111.  355.  7.     If  his  assent  was  not  clearly  shown 

2  Ibid.  to  his  wife's  trade,  there  would  appear 

3  Jassoy  v.  Delias,  65  111.  469  ;  Jen-  to  have  been  a  pretty  fair  inference, 
kins  v.  Flinn,   37    Iud.   349,  aud  cases  from  the  facts,  that  he  gave  it. 

cited;    Dumas    v.    Neal,   51    Ga.    56.3;  °  Ashworth  v.  Outram,  L.  R.  5  Ch. 

Clinton  Man.  Co.  v.  Hummell,  25  N.  J.  923.     As  to  selling  out  the  good-will, 

Eq.  45;  Schouler,  Hus.  &  Wife,  §  307.  see  lie  Peacock's  Trusts,  L.  R.  10  Ch. 

4  Act  33   &  34  Vict.   c.   93 ;    supra,  D.  490. 

§  203.  t  Act  45  &  46  Vict.  c.  75.     And  see 

*  Lovell  v.  Newton,  L.  R.  4  C.  P.  D.     Gilchrist  ex  parte,  17  Q.  B.  D.  521. 
17  257 


§  166  THE   DOMESTIC   RELATIONS.  [PART   II. 

The  recent  married  women's  acts  in  many  of  the  United  States 
have  enlarged  and  more  fully  established  the  wife's  power  to 
trade  or  exercise  a  profession  on  her  own  account;  and  the 
profits  of  her  business  are  thus  secured  to  her  sole  and  separate 
use.1  She  is  thus  enabled  to  use  her  separate  property ;  and  she 
may  even  enter,  in  some  States,  into  a  general  partnership  for 
trade.  In  general,  what  the  wife  acquires  under  these  statutes  is 
declared  to  be  exempt  from  liability  for  the  husband's  debts,  and 
not  subject  to  his  control  or  interference.  But  the  statutes  of 
certain  States  require  the  married  woman  to  first  register  her 
intention,  thus  affording  a  very  reasonable  safeguard  against 
fraud  and  imposition  upon  the  public  and  herself,  besides  re- 
quiring that  the  act  be  a  deliberate  one  ;2  and  the  husband  will 
be  held  liable  on  her  contract  where  the  certificate  is  not  duly 
filed.3  In  Kentucky,  special  authority  to  trade  must  first  have 
been  conferred  by  the  chancellor.4  Such  requirements  not  being 
complied  with,  the  creditors  of  the  husband  may  come  upon  the 
assets  of  the  business.  A  statute  which  is  designed  to  secure 
to  the  wife  her  separate  earnings  does  not  make  her  a  feme  sole 
trader.5 

The  wife,  under  such  statutes,  is  found  engaged  on  her  sepa- 
rate account,  as  milliner  and   dressmaker,6   farmer,7  boarding- 

1  Such  statutes  are  to  be  found  in  or  enter  into  a    building  association. 

New   York,   Maine,    New   Hampshire,  See  103  Penn.  St.  86. 
Massachusetts,     Connecticut,     Kansas,  2  Mass.    Stats.    1862,    c.    198;    137 

New    Jersey,   Iowa,    California,    Wis-  Mass.  134;    138  Mass.  83;   150  Mass. 

consin,  Illinois,  Arkansas,   Mississippi,  82.       See     Schouler,     Hus.     &     Wife, 

and  other  States.     And  see  Mitchell  v.  §  309.     Such  statutes  must  not  be  too 

Sawyer,  21   Iowa,  582 ;    Schouler,  Hus.  technically  construed,  so   as   to  defeat 

&  Wife,  §  309,  and  appendix.     See  also  her    usual   right    to   acquire    separate 

Stimson's  Am.    Stat.    Law,    art.    652.  property.     150  .Mass.  82.     An  Alabama 

Such    local    statutes    speak    of    "free  statute  requires  the  husband's  written 

trader,"  "sole  trader,"  "free  dealer,"  consent   to  the  wife's  power  to  trade. 

"  public  merchant,"  &c.    To  the  status  98  Ala.  475. 

of  free  trader  (which  often  applies  to         ;)  Feran  v.   Rudolphsen,  106  Mass. 

wives  abandoned   by  their  husbands),  471. 

peculiar  rights  and  liabilities  sometimes         4  Uhrig  v.  Horstman,  8  Bush,  172. 
attach    under    these    codes.     See    101         c  iqi  Penn.  St.  181. 
Penn.  St.  371;   96  Penn.  St.  180;   78         »  Jassoy  v.  Delius, 65 111. 469 ;  Tuttle 

Mo.  820     po  t,  §  219  ;  79  Kv.  497.  v.  Hoag,  46  Mo.  38. 

A  married  woman  may  now  in  many  ~   Koiiskop   v.  Shout/.,    51    Wis.   204; 

States    incur    a    stockholder's    liability  Snow   r.    Sheldon,   126   Mass.  332;    79 

with  reference  to  shares  she  may  own,  Ky.  497;  52  Ark.  234. 
9*8 


chap,  xn.j  wife's  power  to  trade.  §  167 

house  keeper,1  army  sutler,2  operator  of  a  mill,3  saloon-keeper,4 
tavern-keeper,5  or  in  whatever  other  business  she  may  choose 
to  carry  on  with  her  own  capital.  Even  though  the  trade  be 
unsuitable  to  her  sex,  fraud  upon  the  husband's  creditors  will 
not  be  conclusively  presumed.6  But  it  is  held  that  the  busi- 
ness under  such  statutes  should  be  pursued  as  a  continuing  and 
substantial  employment.7  As  to  the  wife's  more  purely  pro- 
fessional earnings,  the  very  publicity  of  such  a  pursuit  and  its 
definite  acquisitions,  as  against  the  humbler  incidentals  of  house- 
hold routine,  on  the  one  hand,  or  the  mercantile  employment  of 
capital,  on  the  other,  favor  a  judicial  resort  to  the  actual  mari- 
tal understanding,  so  as  to  do  the  wife  justice.8 

§  167.  Wife's  Trading  Liabilities  under  American  Statutes.  — 
Under  these  American  statutes  permissive  of  the  wife's  separate 
trade,  it  is  a  general  rule  that  the  wife's  contracts  regarding  her 
separate  trade  or  business  are  binding  on  her  separate  property, 
and  that  the  husband  is  not  answerable  for  her  solvency.  With 
reference  thereto  she  may  make  contracts,  and  sue  and  be  sued, 
as  if  sole,  except  (as  such  statutes  usually  run)  that  where  she  is 
sued  the  remedy  is  to  be  enforced  against  her  separate  property 
only,  and  not  against  her  person.  She  may  make  contracts  of 
sale,  and  sue  for  goods  sold  and  delivered  to  her  customers.9 
The  power  to  do  business  implies,  too,  the  power  to  purchase 
goods,  fixtures,  and  stock  for  it,  and  execute  the  needful  instru- 
ments of  purchase  ;  and  hence  the  wife's  contracts  for  such  pur- 


1  Harnden  v.  Gould,  126  Mass.  4T1  ;  quiescence  and  knowledge  on  her  hus- 
125  Mass.  421 ;  Hoag  v.  Martin,  80  band's  part  favored  sufficiently  the  idea 
Iowa,  714.  of  a  gift  from  liim. 

2  Swasey  v.  Antram,  24  Ohio  St.  9  Porter  v.  Gamba,  43  Cal.  105 ;  Net- 
87.  tervillew.  Barber,  52  Miss.  168;  Trieber 

8  Cooper  v.  Ham,  49  Ind.  393.  v.  Stover,  30  Ark.  727.     The  contracts 

4  Nispel  v.  Laparle,  74  111.  306.  of  married  women,  made  by  virtue  of 

5  Silveus  v.  Porter,  74  Penn.  St.  such  statute  capacity  should  not  be 
448.  viewed  with  hesitation  or  suspicion  by 

6  Guttman  v.  Scannell,  7  Cal.  455.  the  courts,  but  should  be  fully  enforced. 

7  Holmes  v.  Holmes,  40  Conn.  117.  Netterville   i>.   Barber,   52    Miss.    168; 

8  In  Belford  v.  Scribner,  144  U.  S.  Burk  v.  Piatt,  88  Ind.  283.  The  wife 
488,  where  an  authoress  who  was  a  cannot  allege  her  own  fraud  to  defeat 
married  woman,  took  out  copyright  in  her  business  indebtedness.  Smith  v. 
her  name  and  received  regularly  her  Weeks,  65  Vt.  566. 

royalties  from  the  publisher,  long  ac- 

259 


£168 


THE   DOMESTIC    RELATIONS. 


[PART   II. 


chase  on  credit,  her  notes,  bills,  securities,  or  simple  indebted- 
ness therefor,  must  be  deemed  obligatory  and  enforceable 
against  her  separate  property  by  suit  or  otherwise.1  And  what 
she  thus  purchases,  in  the  exercise  of  her  trading  discretion,  is 
to  be  held  and  treated  as  her  sole  and  separate  property  as 
against  her  husband  and  his  creditors.2  Where,  too,  the  mar- 
ried woman  keeps  a  separate  bank  account,  with  reference  to 
such  business,  the  check  which  she  draws  against  it  and  the 
fund  itself  are  available  to  her  business  creditors.3  What  she 
borrows  by  way  of  capital  to  commence  the  business,  she  is 
required  to  refund.4 

§  168.  Wife's  Trade  ;  Husband's  Participation.  —  It  follows 
that  under  such  legislation  the  husband  is  not  liable  on  the 
wife's  contracts  and  liabilities  incurred  in  the  pursuit  of  her  sep- 
arate business,  unless  he  participates  in  it.5  And  what  she 
invests  in  from  the  profits  of  her  trade  is  her  own  if  she  keeps 
it  duly  apart  as  separate  property.8  But  his  participation  will 
not  unfrequently  be  found  in  the  modern  cases  ;  and  hence 
arises  legal  uncertainty,  and  often  a  suspicion  of  fraudulent 
arrangements  against  one  another's  creditors.     Does  the  proof, 


1  Nispel  v.  Laparle,  74  111.  306; 
Kouskop  v.  Shontz,  51  "Wis.  204; 
Wheaton  v.  Phillips,  1  Beasl.  221  ; 
Reading  v.  Mullen,  31  Cal.  104  ;  Schou- 
ler,  Hus.  &  Wife,  §  310;  Wallace  v. 
Rowley,  91  Ind.  586;  54  Vt.  384;  18 
J'la.  70".  Plenary  power  to  become 
accommodation  indorsei  is  not  implied 
under  such  statutes.  86  Ga.  780.  And 
Bee  52  Ark.  234. 

-  Tallman  v.  Jones,  13  Kans.  438; 
Meyers  v.  Rahte,  46  Wis.  655  ;  Sammis 
v.  McLaughlin,  35  N.  Y.  647;  Silveua 
v.  Port'  i  :i  Penn.  St.  448;  Dayton  v. 
Walsh,  ir  Wis.  113. 

•  :i-li  v.  Mitchell,  71  N.  Y.  199. 

'  Freckingr.  Rolland,  53  N.  Y.  442  j 
75  Ala  806j  Abbott  v.  Jackson,  43 
Ark.  'jil'.  As  to  purchasing  fixtures 
or  r<;il  estate  for  carrying  <>n  the  busi- 
ness,  -■  ■    /'■       Dayton   v.   Walsh,  47 

Wit    I  13  ,    Kouskop   V.   Shout/.,  51   Wis. 

204 

200 


On  general  principles,  equity  will 
enjoin  a  married  woman  who  sells  out 
a  business  and  its  good-will,  which  she 
has  carried  on  for  her  separate  account, 
from  violating  her  own  agreement  with 
the  purchaser  in  restraint  of  future 
competition  or  interference  ;  for  in  this 
respect  a  married  woman  should  not  be 
regarded  more  favorably  than  others 
who  dispose  of  their  business  to  bona 
fide  purchasers.  Morgan  v.  Perhamus, 
36  ( »hio  St.  517.  And  see  Re  Peacock's 
Trusts,  L.  R.  10  Oh.  D.  490.  But  see 
Emmert  v.  Richardson,  44  Kan.  268, 
which  inequitably  allows  the  husband 
to  frustrate  his  wife's  covenant  where 
he  did  not  himself  covenant. 

6  Parker  v.  Simonds,  1  Allen,  258  ; 
Colby?;.  Lamson,  39  Me.  119;  Trieber 
V.  Stover,  80  Ark.  727  ;  Tuttle  V.  Hoag, 
46  Mo.  38. 

fi  IIoa#  v.  Martin,  80  Iowa,  714; 
Stewart  v.  Stout,  38  W.  Va.  478. 


CHAP.  XII.]  WIFE'S   POWER   TO   TRADE.  §108 

we  must  ask,  under  any  such  circumstances,  show  that  the 
wife  carried  on  no  separate  trade,  but  was  her  husband's  agent? 
or  that  she  did,  and  the  husband  was  her  agent  ?  or  that  they 
were  in  open  or  secret  partnership  together  ? 

In  Massachusetts,  where  the  statutory  doctrine  of  the  wife's 
power  to  trade  and  accpiire  separate  earnings  promptly  received 
a  considerable  exposition  in  the  courts,  it  is  held  that  when  a 
married  woman  carries  on  the  business  of  keeping  boarders  on 
her  sole  and  separate  account,  and  has  purchased  goods  to  be 
used  in  her  business  on  her  sole  credit,  she  alone  is  liable, 
although  her  husband  lived  with  her  when  the  goods  were  pur- 
chased ;  and  her  own  acts  and  admissions  in  reference  to  the 
business  are  competent  evidence  against  her.1  In  Maine  the 
husband  cannot  be  sued  for  goods  and  chattels  furnished  his 
wife  by  third  persons  in  the  course  of  her  business,  even  though 
such  purchases  were  made  by  her  with  his  knowledge  and  con- 
sent, and  although  she  appropriated  part  of  the  proceeds  to  the 
support  of  her  husband  and  family.2  But  where  the  purchases 
and  sales  are  made  with  the  husband's  knowledge  and  consent, 
and  he  participates  in  the  profits  of  the  business,  knowing  them 
to  be  such,  and  that  she  professed  to  act  for  him,  it  may  be 
inferred  in  general  that  the  transactions  were  upon  the  hus- 
band's credit.3  Where  the  separate  business,  however,  is  carried 
on  against  the  husband's  consent  and  without  his  concurrence, 
he  assuredly  is  not  liable,  as  a  general  rule.4 

In  New  York,  as  against  her  husband's  creditors,  the  wife 
may  make  him  managing  agent,  and  let  him  conduct  the  busi- 
ness in  her  name,  while  she  furnishes  the  capital  from  her  own 
means  and  takes  the  profits  to  herself ;  paying  the  managing 
agent  what  she  thinks  best,  without  subjecting  the  stock  in. 
trade  to  his  debts.5     So,  too,  under  the  New   Jersey  statute, 

1  Parker  v.  Simonds,  1  Allen,  258.  ♦  Tuttle  v.  Hoag,  46  Mo.  38 ;  Jen- 
As  to  husband's  liability  on  a  lease,  kins  ?\  Flinn,  37  Ind.  349.  See  Smith 
thougb  professing  to  underlet  for  a  v.  Thompson,  36  Conn.  107,  where  the 
wife's  business,  see  Knowles  v.  Hull,  99  married  woman  had  no  power  to  trade 
Mass.  562.     But  see   §   166,   requiring  as  a  fi me  sole. 

registry  of  a  separate  business.  5  Buckley  v.   Wells,  33   N.  Y.  518. 

2  Colby  r.  Lamson,  39  Me.  119.  And   cf.    Sherman  v.   Elder,  24  N.  Y 

3  Oxnard  v.  Swanton,  39  Me.  125.         381  ;  Barton  v.  Beer,  35  Barb.  78 ;  Ab- 

261 


168 


THE   DOMESTIC   RELATIONS. 


[PART   II. 


which  allows  the  wife  the  fruits  of  an  occupation  carried  on  by 
her  separately  from  her  husband,  she  may  obtain  the  goods  from 
one  who  buys  of  her  husband's  creditor,  pay  the  consideration 
and  employ  her  husband  for  his  board  and  clothing  to  carry  on 
the  business ;  and  in  such  a  case  the  husband's  creditors  can 
assert  no  claim  upon  the  goods  or  the  profits  of  the  business.1 
Elsewhere  the  wife  is  permitted  to  employ  her  husband  similarly 
as  clerk  or  agent  in  her  business.2  Where  the  husband  publicly 
carries  on  the   business  in  his  own  name   and   purchases   as 


bey  v.  Deyo,  44  N.  Y.  343 ;  Hamilton 
r.  "Douglas,  46  N.  Y.  318;  Schouler, 
Hus.  &  Wife,  §  314.  See  Third  Nat. 
Bank  v.  Guenther,  123  N.  Y.  568,  where 
the  wife  employed  her  hnsband  on  a 
salary,  and  agreed  with  him  to  support 
the  family,  and,  upon  failure  of  her 
business,  made  a  preferred  claim  of  his 
unpaid  salary;  67  Miss.  71.  All  pur- 
chases or  contracts  of  purchase  for 
commencing  or  prosecuting  the  wife's 
separate  business  must  have  been  made 
in  good  faith,  and  not  as  a  means  of 
fraudulently  placing  the  husband's  prop- 
erty beyond  the  reach  of  his  creditors. 
Dayton  v.  Walsh,  47  Wis.  113.  But 
the  employment  of  her  husband  in  car- 
rying on  her  separate  business  of  farm- 
ing does  not  make  him  the  wife's  agent 
in  the  business,  unless  he  contributed 
money  or  services  as  partner  :  lb. ;  nor 
his  employment  as  salesman  in  the 
wife's  store:  Ploss  v.  Thomas,  6  Mo. 
A  pp.  157  :  or  as  operative  or  manager 
in  his  wife's  mill.  Cooper  v.  Ham,  49 
Ind.  393.  Proof  that  a  husband  signed 
notes  f"r  goods  in  a  shop  leased  to  him 
is  not  conclusive  proof  that  the  goods 
ili<l   not   belong  to  the  wife's  separate 

■s:    Mason  v.  Bowles,  117    Muss. 
r   a  husband   might  sign  as   an 

and    render  her  business  liable. 

i  : "    '■.    Branigan,    18   Hun,  344. 

judgment  rendered  against 

the  agent  himself,  Bee  Smiley  r.  Meyer, 

55  Mi  -.  :,:,:..     And  sec  ISO  Muss.  247. 

But  transactions  which  .'in-  tainted 

uiib  fraud  upon  the  rights  of  creditors 

and  "i hen  should  not.  be  permitted  to 

■tand.    Capital  placed  bv  a  wife  in  her 

2G2 


husband's  hands  and  by  him  so  em- 
barked in  business  with  her  assent 
that  credit  is  obtained  upon  it,  is  not, 
with  the  increase,  the  wife's  separate 
property  as  against  his  creditors  who 
have  trusted  accordingly,  but  rather 
his  property.  Patton  v.  Gates,  67  111. 
164;  Kouskop  r.  Shontz,  51  Wis.  204. 
Or  possibly  like  that  of  a  firm  in  which 
both  were  partners.  See  §  169,  post. 
A  change  iu  the  mutual  relations  of 
the  spouses  regarding  the  business 
ought,  on  the  usual  principles  of  both 
agency  and  partnership,  to  be  brought 
home  to  the  knowledge  of  creditors 
with  whom  business  relations  continue 
uninterrupted.  Bodine  v.  Killeen,  53 
N.  Y.  93. 

1  Kutcher  v.  Williams,  40  N.  J.  Eq. 
436.     And  see  §  169  ;  32  Kan.  637. 

2  Hossfeldt  v.  Dill,  28  Minn.  469  ; 
Cubberly  v.  Scott,  98  111.  38  ;  Martinez 
v.  Ward,  19  Fla.  175;  139  111.  450; 
Buckley  v.  Dunn,  67  Miss.  71.  And 
see  Mayers  v.  Kaiser,  85  Wis.  382 ;  37 
W.  Va.  242 ;  Lindsley  v.  Bornstein,  124 
Penn.  St.  311.  The  mere  fact  that  the 
time,  labor,  and  skill  of  the  hnsband  are 
employed  in  his  wife's  business  does 
not  give  to  his  creditors  any  right  to 
be  paid  out  of  the  business  profits  :  lb. 
But  it  is  otherwise  where  an  insolvent 
husband,  in  fraud  of  his  creditors,  car- 
ries on  his  own  business  in  his  wife's 
came  ;  she  neither  participating  therein 
Dor  supplying  capital.  Hamill  v.  Au- 
gustine,  81  Iowa,  303  ;  91  Ky.  294.  As 
to  the  husband's  concealment  of  an 
agency  which  actually  existed,  see  91 
Ga.  89. 


CHAP.  XII.]  WIFE'S   POWER   TO   TRADE.  §  168 

proprietor,  creditors  must  hold  him  liable,  and  not  the  wife, 
unless  they  can  overcome  the  presumptions.1  But  where  he 
holds  out  to  the  world  that  it  is  his  wife's  business  and  not 
his,  and  the  wife  knows  and  approves  of  this,  the  latter  is  lia- 
ble for  his  acts  as  her  agent,  while  the  agent  himself  is  not.2 

Where  a  married  woman  manages  a  separate  trade  or  business 
by  agents,  the  usual  doctrine  of  agency  must  apply.  The  wife 
cannot  avoid  the  usual  liabilities  on  the  plea  that  she  made  her 
husband  her  agent.3  The  scope  of  the  agency,  too,  must  be  con- 
sidered as  in  other  cases,  and  the  agency,  as  actually  conferred, 
is  not  the  full  test  of  responsibility  for  the  agent's  dealings  with 
third  parties  ;  for  those  clothed  with  apparent  authority  may 
bind  their  principals  as  though  really  authorized.4  In  short, 
married  women,  as  it  is  well  observed,  to  the  extent  and  in 
the  matters  of  business  in  which  they  are  by  law  permitted  to 
engage,  owe  the  same  duty  to  those  with  whom  they  deal,  and 
to  the  public,  and  may  be  bound  in  the  same  manner  as  if  they 
were  unmarried.  To  the  extent  of  their  enlarged  capacity  to 
transact  business  as  conferred  by  statute,  they  may  be  estopped 
by  their  acts  and  declarations,  and  made  subject  to  all  the  pre- 
sumptions which  the  law  indulges  against  the  other  sex.6  And 
while,  in  general,  the  husband's  gift  may  sustain  the  wife's 
claim  of  profits  accruing  from  her  separate  trade ;  yet  the  better 
opinion  is,  upon  either  equity  or  statute  consideration,  that  a 
business  carried  on  by  a  husband  and  wife  in  full  co-operation, 
his  labor  and  skill  uniting  with  hers,  and  not  upon  any  real 
agreement  of  a  mere  agency  on  his  part,  must  be  considered  as 
his  business  so  far  as  his  creditors  are  concerned,  and  fail  accord- 
ingly  of  protection  for  her  especial  benefit,6  though  it  might, 

1  Dickerson  v.  Rogers,  114  N.  Y.  4  Bodine  v.  Killeen,  53  N.  Y.  93  ;  78 
405,  where  the  hotel  business  was  car-    Ala.  372. 

ried  on  by  the  husband,  upon  premises  6  Bodine  v.  Killeen,    53  N.  Y.   93  ; 

belonging  to  the  wife  and  occupied  by  Parshall  v.  Fisher,  43  Mich.  529  ,  Leland 

both.  v.  Collver,  34  Mich.  418. 

2  Reed  v.  Newcomb,  64  Vt.  49.  6  See  National  Bank  v.  Sprague,  5 

3  Porter  v.  Gamba,  43  Cal.  105.  A  C.  E.  Green,  13 ;  Oxnard  v.  Swanton, 
husband  as  agent  may  thus  in  due  39  Me.  125;  Cramer  v.  Reford,  2  C.  E. 
course  bind  his  wife's  separate  property  Green,  383.  But  see  Penn  v.  White- 
by  a  note  duly  given  and  made  out.  23  head,  17  Gratt.  503  ;  75  Va.  390  ;  Par- 
W.  Va.  236  ;  54  Vt.  384.  tridge  v.  Stocker,  36  Vt.  108 ;  Schouler, 

263 


§  169  THE   DOMESTIC    RELATIONS.  [PART  II. 

perhaps,  be  well  ruled  in  some  States,  that  here  there  is  a  dor- 
mant partnership,  whose  liabilities  should  be  adjusted  under 
partnership  rules,  highly  objectionable  as  the  legislator  may 
well  regard  all  such  partnerships  upon  principle.  Separate 
property  of  the  husband  which  the  wife  uses  in  carrying  on  her 
separate  business  is  liable  to  his  creditors  for  his  own  debts.1 

§  169.  "Wife  as  Copartner  with  Husband  or  Others. — As  to 
all  agencies  and  all  partnerships,  one  rule  may  apply  in  adjust- 
ing rights  as  between  themselves,  and  another  as  to  creditors 
whose  confidence  has  been  invited.  And,  on  the  whole,  it 
would  still  appear  to  be  the  general  rule,  notwithstanding  the 
late  statutes,  that  a  wife  may  not,  as  against  the  world,  become 
her  husband's  partner,  nor  even  join  her  labor  and  capital  to  his 
in  one  and  the  same  busiuess  enterprise.2  In  Massachusetts, 
while  the  statute  permitted  the  wife  to  form  a  copartnership 
with  third  parties,  this  exception  the  court  so  strictly  enforced 
as  to  hold  her  transactions  as  a  member  of  any  firm  in  which 
her  husband  was  interested  as  a  partner  utterly  void,  whether 
to  her  advantage  or  injury,  inasmuch  as  a  married  woman  can- 
not legally  contract  with  her  husband  singly  or  jointly.3  But 
under  the  New  York  statutes  it  is  held  that  a  husband  and  wife 
may  not  only  enter  into  a  valid  partnership  together  for  busi- 
ness, but  may  carry  it  on  under  the  name  "  A.  &  Co."  (the  "  Co." 
representing  the  wife)  without  violating  the  law  which  forbids 
persons  to  transact  business  under  fictitious  names;  and  hence 
that  they  can  sue  and  recover  in  their  joint  names  for  goods 
sold  and  delivered  by  their  firm.4 

Hub.    &   Wife,    §§   303,    315.     For    in-  v.  Lord,  7   Allen,  481.     So  in  Wiscon- 

Btances   where   the    husband    helps   to  sin:  Fuller  v.  MeHenry,  83  Wis.  573; 

raise  crops   on  the  wife's  farm,  which  and  in  Arkansas.     56  Ark.  294. 

are   presumably  her  own,  see  Scott  v.  4  Zimmerman    v.    Erhard,  8    Daly, 

Hudson,    86    End.    286 ;  28    Minn.  409.  311;    Suav    v.    Caffe,   122   N.    Y.  308. 

Bui  cf.  aote,  supra.  And    so   as   to    other    States.     See  Re 

1  Thomas  v.  Desmond,  63  Cal.  426.  Kinkead,  3  Biss.  405;  Schouler,  Has. 

-  Wilson    v.    Loomis,    55     111.    352;  &  Wife,  §  316 ;  Camden   v.  Mullen,  29 

Montgomery  v.  Sprankle,  81   Ind.  113;  Cal.  564;  Reading  v.  Mullen,  31  Cal. 

Lord  <■    Parker,  3  Allen,  127;  Brown  104;  Atwood  v.  Meredith,  37  Miss.  635  ; 

ancellor,  61  Tex.  437 ;  91  [nd.384.  Oglesby  v.  Hall,  80  6a.  386  ;  60  Miss. 

See  ii  Ohio  St.  192.  238. 

■'■  Lord  '■   Parker,  3  Allen,  127;  Ed-  A  woman   who  lends   money  to  a 

ward.-,/,  si.   ens,  3  Allen,  315;  Plumer  partnership  of  which  her  husband  is  a 

264 


CHAP.  XII.]  WIFE'S    POWER    TO   TRADE. 


§169 


By  the  wife's  business  copartnership  with  third  persons,  and 
particularly  with  those  of  the  opposite  sex  apart  from  her  hus- 
band, she  entangles  her  separate  property  disadvantageously, 
and  incurs  the  risk  of  personal  affiliations,  besides,  quite;  perilous 
to  domestic  concord  and  the  mutual  confidence  which  marriage 
demands.  In  Massachusetts  the  legislature  permitted  a  married 
woman  to  form  a  copartnership  in  business  with  third  parties, 
though  not  with  her  husband  ;  but,  after  some  ten  years'  expe- 
rience, repealed,  in  1874,  that  permission.1  Most  other  States 
deny  her  such  a  right  as  separate  and  exclusive  of  her  husband's 
interest  while  she  lives  with  him  ;2  though  in  some  parts  of  the 
Union  such  copartnerships  are  sanctioned,3  and  she  is  not  unfre- 
quently  found  connected  with  business  firms  as  a  partner  in 
place  of  her  deceased  husband;4  sometimes,  too,  he  is  her  suc- 
cessor, or  else  participates  with  her  and  third  persons  in  the 
concern,5  or  is  even  her  agent  in  her  partnership  with  a  third 
person.6 

Where  a  married  woman  enters  legally  into  a  copartnership, 
she  becomes  personally  liable,  to  the  extent  of  her  separate 
property,  for  the  partnership  debts,  like  any  other  partner.7 
But  many  of  our  latest  decisions  tend  to  protect  the  wife  against 
copartnership  liabilities.8  On  the  other  hand  there  are  State 
courts  which,  while  holding  that  the  wife  cannot  be  legally  a 


member  cannot  recover  it  back  in  law 
or  equity.  Fowle  v.  Torrey,  135  Mass. 
87. 

1  Todd  v.  Clapp,  118  Mass.  495. 
Such  repeal,  not  being  interpreted  re- 
troactively, was  held  constitutional. 
lb.     And  see  140  Mass.  521. 

2  See  Bradford  v.  Johnson,  44  Tex. 
381;  61  Tex.  437;  20  W.  Va.  571; 
Bradstreet  v.  Baer,  41  Md.  19;  Howard 
v.  Stephens,  52  Miss.  239  ;  35  W.  Va. 
186  ;  82  Tex.  130;  Vannerson  v.  Chea- 
tham, (1894),  S.  C. 

3  See  Newman  v.  Morris,  52  Miss. 
402;  Dunifer  v.  Jecko,  87  Mo.  282; 
Conant  v.  State  Bank,  121  Ind.  323; 
94  Mich.  230. 

4  Preusser  y   Henshaw,  49  Iowa,  41. 

5  Bitter  v.  Rathman,  61  N.  Y.  512; 
Swasey  v.  Antram,  24  Ohio  St.  87. 


6  Meyer  v.  Montgomery,  87  Mich. 
278. 

7  Suav  v.  Caffe,  122  N.  Y.  308; 
Preusser  v.  Henshaw,  49  Iowa,  41  ; 
Newman  v.  Morris,  52  Miss.  402;  125 
Penn.  St.  394 ;  Vail  v.  Winterstein,  94 
Mich.  230. 

8  See  Swasey  v.  Antram,  24  Ohio  St. 
87  ;  Parshall  v.  Fisher,  43  Mich.  529 ; 
Carey  v.  Burruss,  20  W.  Va.  571  ;  Bitter 
v.  Rathman,  61  N.  Y.  512;  Schouler, 
Hus.  &  Wife,  §  318 ;  Frank  v.  Ander- 
son, 13  Lea,  695.  See,  as  to  enforcing 
trading  liabilities  against  a  wife,  Schou- 
ler, Hus.  &  Wife,  §§  319,  320.  If  hus- 
bazid  and  wife  cannot  lie  copartners  in 
trade,  all  the  property  employed  must 
be  regarded  as  the  husband's,  and  all 
the  liabilities  as  his  sole  liabilities. 
Fuller  v.  McHenry,  83  Wis.  573. 

265 


170 


THE   DOMESTIC   RELATIONS. 


[PART   II. 


partner  with  her  husband  assert  such  consequences  rather  as  be- 
tween the  partners  themselves,  while,  as  to  creditors  and  third 
parties  generally,  subjecting  the  wife's  own  property  to  a  diastrous 
obligation.1 

§  170.  Civil-Law  Doctrine  of  Separate  Trade.  — By  the  Civil 
Code  of  France,  the  wife  may  carry  on  a  trade  independently 
of  her  husband.2  So  the  wife  may  be  a  separate  trader  under 
the  custom  of  Paris.3  And  a  similar  right  is  recognized  by  the 
laws  of  Spain  and  other  European  countries.4  From  the  civil, 
rather  than  the  common  law,  are  derived  those  property  rights 
of  married  women  which  are  recognized  in  Louisiana,  California, 
and  others  of  the  Southwestern  States,  originally  colonized  by 
the  Spanish  and  French.  Thus  the  Louisiana  Code  recognizes 
the  capacity  of  the  wife  to  carry  on  separate  trade,  or,  as  it  is 
said,  to  constitute  herself  a  public  merchant,  provided  she  act 
bona  fide  and  have  an  active  agency  in  the  concern.5 


1  Louisville  R.  v.  Alexander  (1894), 
Ky.;  Laner  v.  Bishop,  65  Vt.  575. 

"  2  Code  Civil,  art.  220 ;  1  Burge,  Col. 
&For.  Laws,  219. 

3  1  Burge,  Col.  &  For.  Laws,  218. 

*  lb.  226,  420,  698. 

5  La.  Code,  art.  128;  Christensen 
v.  Stumpf,  16  La.  Aun.  50.  And  see 
Camden  v.  Mullen,  29  Cal.  564 ,  Read- 
ing v.  Mullen,  31  Cal.  104  ;  Community 
Doctrine,  supra,  §  7. 

As  to  modern  changes  in  marital  rights 
and  duties.  —  How  great  the  change 
which  modern  equity  and  legislation 
have  wrought,  and  modern  legislation 
especially,  in  marital  rights  and  duties 
as  defined  hy  the  common  law,  will 
further  appear  from  the  miscellaneous 
changes  ooticed  iii  Schooler,  I  his.  & 
Wife,  §§  :i2l-:j.'i.'5,  which  see  passim; 
also  Appendix,  with  analysis  of  latest 
married  women's  acts.  These  changes, 
which  concern  contracts,  torts,  prop- 
erty of  the  wife,  and  suits  by  or  against 
her,  may  be  ipecifled  as  chiefly  relat- 
ing; (1)  to  the  wife's  antenuptial 
debts;  (2)  tO  the  wife's  general  disa- 
bility  to  contract;  (•'()  to  the  necessaries 
of  wife  and  family;  (4)  to  torts  com- 

266 


mitted  by  the  wife ;  (5)  to  torts  com- 
mitted upon  the  wife ;  (6)  to  torts  or 
crimes  committed  by  one  spouse  and 
affecting  the  other;  (7)  to  the  wife's 
property ;  (8)  to  actions  by  or  against 
a  married  woman,  her  arbitration,  &c. 
Many  codes  in  these  respects  completely 
reverse  the  old  rule  of  the  common 
law. 

To  attempt  a  minute  analysis  of  the 
married  women's  acts  would  require 
more  space  than  our  plan  will  permit. 
Nor  would  it  profit  the  reader.  The 
independent  legislation  of  some  forty 
distinct  communities,  without  uniform- 
ity of  plan  or  principle,  involving,  as  it 
does,  the  most  interesting  and  yet  the 
most  perplexing  of  social  problems, 
must  necessarily  produce  results  which 
cannot  be  reconciled.  It  is  too  early 
yet  to  generalize  from  the  decisions. 
Even  though  the  hand  of  innovation 
should  be  stayed  for  a  while,  and  pub- 
lic attention  centre  in  the  work  of 
blending  these  results  into  harmony,  it 
would  be  many  years  before  our  courts, 
applying  local  codes  and  the  traditions 
Of  the  English  common  law  and  equity 
jurisprudence  to  the  discordant  mass  of 


CHAP.  XIII.]         ANTENUPTIAL   SETTLEMENTS. 


§171 


CHAPTER   XIII. 


ANTENUPTIAL   SETTLEMENTS. 


§  171.  Nature  of  Marriage  Settlements.  —  Settlements  are  a 
useful  contrivance  for  preserving  estates  intact  in  a  family. 
As  between  husband  and  wife  the  word  "  settlement "  is  applied 
to  their  mutual  contracts  in  reference  to  the  property  of  one 
another,  by  means  of  which,  under  the  protection  of  courts  of 
equity  (which  favor,  as  did  also  the  civil  law,  arrangements  in 
recognition  of  property  in  the  wife  as  well  as  the  husband), 
they  change  and  control  the  general  rules  of  the  marriage  state. 
They  cannot  vary  the  terms  of  the  conjugal  relation  itself;  they 
cannot  add  to  or  take  from  the  personal  rights  and  duties  of 
husband  and  wife ;  but  they  may  essentially  alter  the  interest 
which  each  takes  in  the  property  of  the  other,  if  they  choose  to 
enter  into  special  stipulations  for  that  purpose.  These  special 
stipulations  may  be  either  antenuptial  or  postnuptial ;  while,  as 
we  shall  soon  perceive,  the  two  classes  are  more  alike  in  name 
than  substance,  and  the  term  "  marriage  settlements "  is  fre- 
quently applied  to  antenuptial  settlements  only.1 


material  before  them,  could  hope  to  set 
up  a  consistent  and  thorough  American 
system.  As  one  of  our  own  jurists 
well  remarks,  wherever  the  line  may 
be  drawn,  it  will  be  long  before  the 
public  will  understand  and  recognize 
the  point  where  the  power  of  a  married 
woman  to  bind  herself  by  her  bargains 
ceases,  and  frauds  upon  the  thoughtless 
and  inconsiderate  must  often  occur. 
Per  Bell,  C.  J.,  in  Ames  v.  Foster,  42 
N.  H.  381.  The  ultimate  scope  of  all 
this  legislation,  must,  however,  be 
either,  regarding  the  wife  as  peculiarly 
exposed  to  coercion  and  subtle  influ- 
ence or  even  mastery  by  main  force, 
from  the  natural  necessities  of  her  posi- 


tion in  the  conjugal  partnership,  if  not 
the  weakness  of  her  sex,  to  afford  that 
legal  protection  and  shelter  which  she 
has  always  claimed,  and  which  our  law 
in  a  strait  could  never  deny  her;  or 
else,  as  though  no  such  necessities 
exist  in  a  state  of  nature,  but  her  disa- 
bilities have  been  rather  created  by 
municipal  law,  and  enforced  by  tyran- 
nical men,  to  treat  her  as  sui  juris,  and 
make  her  bear  the  full  responsibility  of 
her  own  legal  engagements,  be  they 
prudent  or  foolish,  like  one  discovert. 

1  The  usual  effect  of  such  settlements 
is  to  create  in  the  wife  a  separate  equi- 
table (not  statutory)  estate.  Hamake* 
v.  Hamaker,  88  Ala.  267. 

267 


§  173  THE   DOMESTIC    RELATIONS.  [PART    II. 

§  172.  Distinguished  from  Promises  to  Marry  ;  Statute  of 
Frauds.  —  A  distinction  meets  ns  at  the  outset  between  prom- 
ises to  marry  and  promises  in  consideration  of  marriage.  The 
Statute  of  Frauds,  §  4,  requires  that  promises  and  agreements 
in  consideration  of  marriage  shall  be  "  in  writing,  and  signed  by 
the  party  to  be  charged  therewith,  or  some  other  person  there- 
unto by  him  lawfully  authorized."  Yet  a  promise  to  marry  is 
binding,  although  verbal.1  It  would  strike  any  one  (except 
perhaps  a  lawyer)  that  a  promise  by  a  woman  to  marry  a  man 
in  consideration  of  his  promising  to  marry  her  was  an  agree- 
ment made  in  consideration  of  marriage,  but  it  is  not.2  Perhaps 
it  is  public  policy  which  sustains  the  latter  rather  than  the 
former  contract  without  requiring  a  writing.  Perhaps,  too,  this 
carries  weight :  that  a  promise  to  marry  is  merely  a  promise  to 
enter  into  a  certain  relation,  and  therefore  clearly  interpreted 
by  any  court  without  the  aid  of  written  evidence,  provided  the 
promise  be  once  proved ;  while  the  Statute  of  Frauds  is  found 
most  convenient  for  clearly  fixing  mutual  stipulations  which 
might  be  varied  in  a  thousand  ways,  and  affect  the  property 
rights  of  the  contracting  parties  accordingly.  At  all  events,  a 
promise  to  marry,  whether  verbal  or  written,  affords  a  singular 
remedy  for  breach,  one  quite  different  from  the  remedies  attend- 
ing marriage  settlements ;  namely,  no  right  of  specific  perform- 
ance, but  always  damages  to  the  injured  party.3 

Irrespective  of  the  above  provision,  an  oral  contract  in  con- 
sideration of  marriage  might  be  objectionable  under  that  other 
sectioD  of  the  Statute  of  Frauds  which  requires  contracts  not 
performable  within  a  year  to  be  expressed  in  writing.4 

S  17">  Marriage  the  Consideration  which  supports  Antenup- 
tial Settlements.  —  In  antenuptial  marriage  settlements,  or  what 

1   Macq     IIns.    &  Wife,    220;  Cook  contemplate    marrying    one    another. 

v    Baker,  1  Stra.  34 ;  Harrison  v.  Cage,  Dye  v.  Dye,  13  Q.  B.  D.  147.  See  §179. 

1     J.'l.    Kaym.    .'i^O;    Schouler,    IIus.  &  But  a  contract  orally  made  and  fully 

Wiir        n  executed    between   parties    to  a   mar- 

Smith,  Contracts,  57.  riagc,  whereby  the   wife's   land  was   to 

l     j  held  that  in  order  to  affect  the  be  conveyed  to  the  husband  in  consid- 

nple  of  an   intended  wife's  lands  eration   of  support,   dr.,  is  held  bind- 

writh   a   trusl   for  her  separate  use,  an  ing  in   Larsen  v.  Johnson,  78  Wis  300. 

ante  mptial  agreement  must,  be  in  writ-  Cf.  Rogers  v.  Wolfe,  104  Mo.  1  ;  §  179. 

Ing  fl  both  i  lie  persons  who  4   Desbon  v.  Woods,  148  Mass.  132. 

'  268 


CHAP.  XIII.]         ANTENUPTIAL   SETTLEMENTS.  §  17u 

are  called  "marriage  settlements,"  the  marriage  affords  a  suffi- 
cient consideration.  Hence  a  man  cannot  set  aside  an  agree- 
ment in  contemplation  of  marriage,  on  the  plea  that  his  wife's 
fortune  fell  short  of  his  expectations;  for,  as  Lord  Hardwicke 
observed,  it  would  be  extremely  mischievous  to  set  aside  mar- 
riage settlements  upon  such  grounds.1  It  is  the  consideration 
of  marriage,  not  the  consideration  of  a  corresponding  fortune, 
which  runs  through  the  whole  settlement  or  agreement,  and 
supports  every  part  of  it,  thus  making  marriage  not  only  a 
high,  but  the  highest  consideration  in  fact  known  to  the  law.2 

In  this  country  the  validity  of  marriage  settlements  is  gen- 
erally recognized ;  and  it  is  well  understood  that  almost  any 
hona  fide  and  reasonable  agreement,  made  before  marriage,  to 
secure  the  wife  either  in  the  enjoyment  of  her  own  property  or 
a  portion  of  that  of  her  husband,  whether  during  coverture  or 
after  his  death,  will  be  carried  into  execution  in  chancery.3 
"These  marriage  settlements,"  observes  Chancellor  Kent,  "are 
benignly  intended  to  secure  to  the  wife  a  certain  support  in 
every  event,  and  to  guard  her  against  being  overwhelmed  by 
the  misfortunes  or  unkindness  or  vices  of  her  husband.  They 
usually  proceed  from  the  prudence  and  foresight  of  friends,  or 
the  warm  and  anxious  affection  of  parents ;  and,  if  fairly  made, 
they  ought  to  be  supported  according  to  the  true  intent  and 
meaning  of  the  instrument  by  which  they  are  created."  4  And 
marriage  is  of  itself  pronounced  in  the  supreme  court  of  this 
land  to  be  not  only  a  valuable  consideration  to  support  a  mar- 
riage settlement,  "  but  a  consideration  of  the  highest  value."5 

1  Ex  parte  Marsh.  I  Atk.  159.  But  2  Pet.  595 ;  Hunter  v.  Bryant,  2  Wheat. 
see  post,  §  181.  32;  Tarhell  v.  Tarbell,  *10  Allen,  278; 

2  Ford  i'.  Stuart,  15  Beav.  499;  Nairn  Skillman  v.  Skillnian,  2  Beasl.  403; 
v.  Prouse,  6  Ves.  752  ;  Peachey,  Mar.  Cartledge  v.  Cutliff,  29  Ga.  758  ;  Albert 
Settl.  56.  Where  the  intended  husband  v.  Winn,  5  Md.  66;  Snyder  v.  Webb, 
contracted  in  writing  to  leave  a  certain  3  Cal.  83;  Smith  v.  Chappell,  31  Conn, 
hr.use  for  life  to  the  intended  wife,  and  589. 

after  marriage,  he  deeds  the  house  to  a  An  estate  may  be  limited  to  an  un- 

third  party,  an  immediate  right  of  ac-  married   woman's    separate   use,   even 

tion  accrues  to  the  wife  for  his  breach,  where  no  particular  marriage  is  contem- 

Synge  v.  Synge,  (1894)  1  Q.  B.  466.  plated.     Schonler,  Hus.  &  Wife,  §  198; 

8  Stilley  v.  Folger,    14  Ohio,   610;  Haymond  v.  Jones,  33  Gratt.  317. 

2   Kent.  Com.   163;  2  U.  S.  Eq.  Dig.  *  2  Kent,  Com.  165. 

Hus.  &  Wife,  22-30;  English  v.  Foxall,  5  Per  Storv,  J.,  Magniac  v.  Thomp- 

269 


174 


THE   DOMESTIC   RELATIONS. 


[PART   II. 


§  174.  How  far  this  Support  Extends.  —  But  this  rule  must 
be  taken  with  some  caution.  The  marriage  consideration  sup- 
ports every  provision  with  regard  to  the  husband,  the  wife,  and 
the  issue.  As  for  marriage  itself,  the  marriage  of  persons  for- 
merly in  loose  cohabitation  furnishes  good  consideration ; 2  and 
even  perhaps  a  void  or  illegal  marriage,  provided  that  the  mar- 
riage was  contracted  with  honest  conjugal  intent,  and  particularly 
where  the  question  affects  only  their  respective  interests.2  The 
consideration  is  held  also  to  extend  to  stepchildren  by  a  former 
marriage.3  It  does  not,  however,  always  extend  to  collaterals,4 
though  Sir  Matthew  Hale  and  others  held  formerly  that  it 
would,  maintaining  that  the  influence  of  the  marriage  consid- 
eration extended  to  purchasers  generally.5  Nor  are  covenants 
in  favor  of  strangers  supported  by  the  marriage  consideration 
unless  specially  provided  for.6 

The  consideration  of  marriage  will  support  a  settlement 
against  creditors,  even  prior  ones ;  this,  too,  it  would  appear, 
though  the  parties  both  knew  of  the  husband's  indebtedness,  so 
long  as  the  provisions  of  the  settlement  are  not  grossly  out  of 
proportion  to  his  station  and  circumstances  ; 7  and  so,  too,  where 
the  party  to  be  benefited  thereby  was  implicated  in  no  fraud 
upon  the  other's  creditors,  even  though  that  provision  be  unrea- 
sonably large.8     But  if  it  appear  that  the  celebration  of  mar- 


son,  7  Pet.  348.    And  see  Armfield  v. 
Armfield,  1  Freem.  Ch.  311. 

1  Herring  v.  Wickham,  29  Gratt. 
628. 

2  Even  in  England,  upon  lapse  of 
time,  a  settlement  deed  was  allowed  to 
stand  where  a  widower  had  married  his 
deceased  wife's  sister.  Ayers  v.  Jen- 
kins, L.  R.  16  Eq.  275;  §  16. 

3  Michael  v.  Morey,  26  Md.  239; 
Gale  v.  Gale,  6  Ch.  D.  144;  Vason  v. 
Bell,  53  I  la.  516.  But  see  Price  v.  Jen- 
kins, 4  Ch.  1).  483.  Cf.  Ardisw.  Printup, 
39  Ga  648,  with  Wollaston  v.  Trihe, 
L.  !>'.  9  Eq.  44,  as  to  children  of  a  fu- 
ture marriage. 

*  Peachey,  Mar.  Settl.  58,  60,  and 
Cases  cited;  Davenport  v.  Bishop,  1 
Phil.  Toi  ;  Barhara  v.  Marl  of  Claren- 
don, 10   Hare,  133;  Ford  v.  Stuart,  15 

270 


Beav.  505  ;  Cotterell  v.  Homer,  13  Sim 
506 ;  Wollaston  v.  Tribe,  L.  R.  9  Eq 
44;  Paul  v.  Paul,  20  Ch.  D.  742. 

8  Jenkins  v.  Kemis,  1  Ch.  Cas.  103 
1  Lev.  152. 

6  Sutton  v.  Chetwynd,  3  Mer.  249 
per  Sir  Wm.  Grant  Sugden,  Law  Prop 
153  ;  Peachey,  Marr.  Settl.  61. 

7  Campion  v.  Cotton,  17  Ves.  272 
Ex  parte  McBurnie,  1  De  G.  M.  &  G 
446;  Ramsay  v.  Richardson,  Riley,  Ch 
271 ;  Armfield  v.  Armfield,  1  Freem 
Ch.  311  ;  Jones's  Appeal,  62  Penn.  St 
324  ;  Rrnnnelv.  Witherow,  29  Ind.  123 
Barrow  v.  Barrow,  2  Dick.  504;  Coeh 
ran  v.  McBeath,  1  Del.  Ch.  187;  Credle 
r.  Carrawan,  44  N.  C.  422. 

8  Collaterals  are  favorably  regarded 
in  Neves  v.  Scott,  9  How.  (U.  S.)  196; 
lb.    13    How.    268;    Schouler,  Iius.  & 


CHAP.  XIII.]         ANTENUPTIAL   SETTLEMENTS.  §  175 

riage  is  part  of  a  scheme  between  the  marrying  parties  to 
defraud  and  delay  creditors,  such  settlement  will  not  be  al- 
lowed to  protect  the  property  against  just  claims  of  the  latter.1 
At  all  events  both  parties  to  the  settlement  must  have  known 
of  the  intended  fraud  in  such  cases.  Where  fraud  has  been 
committed  by  husband  and  wife  in  reference  to  property  em- 
braced in  the  terms  of  a  settlement,  the  rights  of  a  creditor 
with  insufficient  notice  are  sometimes  upheld  as  against  them- 
selves ;  and  a  wife's  settlement  of  her  own  property  has  been 
so  far  set  aside  as  to  secure  payment  of  her  antenuptial  debt  to 
the  creditor.2 

§  175.  Settlement  Good  in  Pursuance  of  Written  Agreement. 
—  If  an  agreement  be  made  in  writing  before  marriage,  for  the 
settlement  of  an  estate,  the  settlement,  although  made  after 
marriage,  will  be  deemed  valuable.3  This  is  a  well-settled  rule, 
and  should  be  constantly  borne  in  mind. 

There  are  dicta  to  the  effect  that  a  settlement  after  marriage, 
reciting  a  parol  agreement  before  marriage,  is  not  fraudulent 
against  creditors,  provided  the  agreement  had  actual  existence ; 
but  this  point  has  never  been  distinctly  decided  in  England; 


Wife,  §  349,  and  cases  cited.     Where  see  Kevan  v.  Crawford,  6  Ch.  D.  29; 

no  fraud  upon  the  husband's  creditors  Exchange  Bank  v.  Watson,  13  R.  I.  91 ; 

can  be  charged  on  the  woman,  she  may  Sanders  v.  Miller,  79  Ky.  517. 
hold  as  a  purchaser  for  value  against  l  Columbine    v.    Penhall,  1    Sm.  & 

the    husband's     prior    creditors,    even  Gif.  228  ;  Goldsmith  v.  Russell,  5  De  G. 

though    the    settlement   upon  her  em-  M.  &  G.  555;  Peachey,  Mar.  Settl.  63  j 

braced  the  husband's  whole  estate,  and  Simpson  v.  Graves,  Riley,  Ch.  232. 
the  marrying  parties  had  been  cohabit-  2  Sharpe   v.   Foy,  L.   R.  4  Ch.  35 ; 

ing  while  single,  and  had  illegitimate  Smith    v.  Chirrell,   L.  R.  4    Eq.  390; 

children.      Herring   v.    Wickham,    29  Chubb   v.    Stretch,   L.    R.   9  Eq.  555 ; 

Gratt.    628.     This  is  an  extreme  case,  Obermayer  v.  Greeuleaf,  42  Mo.  304  ; 

and   perhaps  some  other  States  would  Brame  v.  McGee,  46  Ala.  170.     As  to 

not  extend  the  rule  so  far.     But  it  finds  the  good  faith    of   a    grantee   in  such 

strong  support  from  the  Supreme  Court  fraudulent  settlements,  see  79  Va.  92. 
of  the  United  States  in  a  case  decided  3  Reade  v.  Livingston,  3  Johns.  Ch. 

in  1881,  which  upheld    the  settlement  481  ;  Finch  v.  Finch,  10  Ohio  St.  501  ; 

of  a  large  amount  of  real  estate,  in  con-  Izard  v.  Izard,  1  Bailey  Ch.  228  ;  David- 

sideration  of  marriage,  by  an  insolvent  son  v.  Graves,  Riley,  Ch.  219;  Satter- 

debtor  upon  the  woman  who  accepted  thwaite   v.    Emley,  3  Green,  Ch.  489  ; 

him,   notwithstanding  the  latter  knew  Rogers    v.    Brightman,    10    Wis.    55; 

he  was  financially  embarrassed.   Prewit  Peachey,  Mar.   Settl.  63 ;  Sugd.  Vend. 

v.  Wilson,  103  U.  S.  22.    See  comments,  &  Purch.,  13th  ed.  590;  Macq.  Hus.  & 

Schouler,  Hus.   &  Wife,  §  349.     And  Wife,  257. 

271 


§  176  THE   DOMESTIC   RELATIONS.  [PART   II. 

and  some  late  authorities  appear  to  doubt  its  correctness.1  The 
payment  of  money  would,  however,  make  a  good  consideration 
for  such  a  settlement  as  against  subsequent  creditors.2  Very 
informal  agreements  are  often  sustained,  rather  on  liberal  than 
technical  construction,  the  court  taking  into  consideration  the 
fact  that  marriage  had  taken  place,  or  other  acts  been  per- 
formed, on  the  strength  of  the  promise.3  The  disposition  of 
equity  courts  in  the  United  States  is  favorable  to  settlements 
after  marriage  in  pursuance  of  some  informal  prior  agreement, 
particularly  as  relates  to  personal  property  and  as  between  the 
spouses  themselves.  Other  considerations,  such  as  forbearance 
to  sue,  or  the  fulfilment,  in  return,  of  terms  prejudicial,  might 
intervene.4  A  mere  oral  agreement  between  the  intended  hus- 
band and  wife,  followed  by  marriage  and  a  continued  recognition 
by  acts,  especially  in  connection  with  such  other  consideration, 
is  held  sufficient  for  the  wife's  favor  in  some  late  American 
cases,  as  between  the  parties  and  those  claiming  under  them.5 

§  176.  Form  of  Antenuptial  Settlements.  —  With  respect  to 
the  form  of  marriage  settlements  it  may  be  generally  observed 
that  equity  pays  no  regard  to  the  externals,  but  considers  only 
the  substantial  intention  of  the  parties  ;  and  hence  articles  or 
an  agreement  will  be  binding  between  husband  and  wife  with- 
out the  intervention  of  trustees  ;  for  here  the  husband  himself 
may  be  bound  to  act  as  trustee.6     And  hence  the  signature  of 

1  See  Peachey,  Mar.  Settl.  63;  Las-  Mac.  &  Gor.  571.  The  numerous  dicta 
sence  v.  Tierney,  1  Mac.  &  Gor.  571  ;  in  all  such  cases  serve  rather  to  ob- 
Warden  v.  Jones,  5  W.   R.  447.     And     scure  than  illustrate  the  principle. 

see   Babcock   if.    Smith,  22    Pick.   61;  5  See  Schouler,  Hus.  &  Wife,  §  350; 

Simpson  v.  Graves,  Riley  Ch.  232.  and  cases  cited;  post,  §§  17(3,  179. 

2  Stillman  v.  Ashdown,  2  Atk.  478 ;  6  Peachey,  Alar.  Settl.  65;  Macq. 
Brown  v.  Jones,  1  Atk.  189.  And  see  Hus.  &  Wife,  242;  Logan  v.  Goodall, 
Butterfield  v.  Heath,  15  Beav.  414.  42  Ga.  95.    But  see  Dillaye  if.  Green- 

:;  See    Livingston    v.    Livingston,   2  ough,  45  N.  Y.  438. 
.Julms.  Ch.  1  SI  ;  Resor  v.  Resor,  9  Ind.  A  strong  instance  of  the  liberality 

347;  Brooks  if.    Dent,  1    Md.  Ch.  523;  of  the  equity  courts  in  this  respect  was 

\V' ist  if,  Howard,  20  Conn.  581.  afforded  in  an  early  decision  by  Lord 

4  Rilej  i>.  Riley,  25  Conn.  154;  Brad-  Keeper   Wright.     The    intended   hus- 

ley  if.   Saddler,  54  Ga.  681.     See,  as  to  band    gave    the  intended  wife  a   bond 

the    like    English    practice,    Peachey,  conditioned  to  leave  her  £1,000  if  she 

M:ir     Settl     71,    87;    Macq.    Hus.    &  should    survive    him.      They    married, 

Wife,  234  ;  Hammersley  if,  De  Biel,  12  and  of  course  the  bond  became  void  at 

CI.  &   Kin.  15;  Lassence  v.  Tierney,  1  law.    But  it  was  held  that   in  equity 

272 


CHAP.  XIII.]  ANTENUPTIAL   SETTLEMENTS. 


§177 


the  wife  to  an  instrument  or  an  indenture  deed  is  by  no  means 
indispensable  in  order  that  her  rights  upon  marriage  considera- 
tion be  sustained.1  But  it  is  held  that  an  antenuptial  instru- 
ment, executed  by  the  husband  only,  binds  himself  alone  by 
its  purport,  though  in  form  an  indenture.2  Oral  settlements 
should  only  be  sustained  on  clear  and  convincing  proof;  for 
such  arrangements  ought  properly  to  be  in  writing.3 

§  177.  Marriage  Articles.  —  In  this  connection  the  use  of  the 
term  "  marriage  articles  "  is  properly  to  be  noticed.  "  When 
promises  and  agreements  in  consideration  of  marriage,"  says 
Mr.  Macqueen,  "  are  meant  to  become  the  ground-work  of  set- 
tlements, they  are  called  marriage  articles.  They  are  often 
drawn  up  hastily,  and  signed  on  the  eve  of  the  nuptial  cere- 
mony from  want  of  time  to  prepare  a  final  deed  ;  which,  how- 
ever, when  ultimately  executed,  if  it  be  in  strict  conformity 
with  the  articles,  will  supersede  them." 4  The  American  rule 
is  favorable  to  marriage  articles,  although  unskilfully  drawn,  so 
long  as  they  are  bona  fide  articles,  and  the  party  marrying 
upon  their  faith  had  good  reason  to  rely  upon  them  as  such.6 
Any  settlement  made  after  msrriage,  in  pursuance  of  marriage 
articles,  or  what  may  be  construed  as  such,  receives  the  full 
support  of  the  marriage  consideration,  and  must  prevail  accord- 


this  should  subsist  as  an  antenuptial 
agreement.  Acton  v.  Pierce,  2  Vern. 
480.  Even  in  law  a  bond,  with  condi- 
tions properly  expressed,  may  be  en- 
forced against  the  husband  to  the 
extent  of  the  penalty  therein  named ; 
yet  equity,  regarding  the  contract  as 
one  for  specific  performance,  will  not 
confine  the  remedy  of  the  injured  party 
to  the  penal  sum  named  in  the  bond  ; 
but,  enforcing  the  real  obligations  of 
the  bond,  will  give,  if  need  be,  thirty 
times  that  sum  to  her  who  married  on 
the  strength  of  it.  Such  is  the  advan- 
tage of  equity  over  the  law.  See  Preb- 
ble  v.  Boghurst,  1  Swan,  309,  before 
Lord  Eldon,  cited  in  Macq.  Hus.  & 
Wife,  243  ct  seq. ;  Cannel  v.  Buckle,  2 
P.  Wins.  242;  Rippon  v.  Dawding, 
Ambl.  565:  Peachey,  Mar.  Settl.  65. 
Bonds  have  heen  frequently  enforced 
18 


in  this  country  as  constituting  a  mar- 
riage settlement.  Aucker  v.  Levy,  3 
Strobh.  Eq  197;  Hunter  v.  Bryant,  2 
Wheat.  32 ;  Freeman  v.  Hill,  1  Dev.  & 
Bat.  Eq.  389;  Baldwin  v.  Carter,  17 
Conn.  201. 

1  Cochran  v.  McBeath,  1  Del.  Ch. 
187. 

2  Chadwell  v.  Wheless,  6  Lea,  312. 

3  Hunt's  Appeal,  100  Penn.  St.  590; 
62  Miss.  302.     And  see  §  172. 

*  Macq.  Hus.  &  Wife,  246. 

5  Neves  v.  Scott,  9  How.  196  ;  Hooks 
v.  Lee,  8  Ired.  Eq.  157 ;  Eivers  v. 
Thayer,  7  Rich.  Eq.  136;  Kinnard  v. 
Daniel.  13  B.  Monr.  496;  Montgomery 
v.  Henderson,  3  Jones  Eq.  113;  Smith 
v.  Moore,  3  Green  Ch.  485 ;  Potts  v. 
Cogdell,  1  Desaus,  456.  The  language 
of  the  Statute  of  Frauds  has  a  material 
bearing  here. 

273 


§  178  THE   DOMESTIC   RELATIONS.  [PABT   II. 

ingly  against  creditors,  purchasers,  and  each  of  the  married 
parties. 

Letters  or  a  correspondence  before  marriage  may  establish  an 
antenuptial  settlement  where  they  sufficiently  furnish  the  terms 
of  the  agreement.  And  so,  too,  may  they  constitute  marriage, 
articles  and  support  a  settlement  made  in  pursuance  of  their 
terms.1  But  the  authenticity  of  such  correspondence  should  be 
well  established,  so  easy  is  such  proof  manufactured  to  suit 
emergencies ;  and  certainly  where  the  contest  is  between  the 
married  pair  and  a  husband's  creditors,  the  true  date  of  the 
letters  should  be  proved,  or  else  that  they  were  duly  received 
before  the  marriage.2  Nor  will  performance  be  decreed,  unless 
it  can  be  gathered,  from  a  fair  interpretation  of  the  letters,  that 
they  imported  a  concluded  agreement,  and  induced  the  mar- 
riage ;  nor  if  it  be  doubtful  whether  what  passed  was  not  mere 
negotiation,  or  a  gratuitous  offer  by  the  one,  which  the  other 
never  accepted  nor  meant  to  rely  upon.3 

§  178.  Marriage  Settlements  by  Third  Persons.  —  Promises 
made  in  consideration  of  the  marriage  by  a  third  party,  such  as 
the  wife's  father,  may  afterwards  be  enforced  against  him  as  (in 
such  an  instance)  by  the  husband.  But  it  must  appear  that  the 
latter  knew  of  the  promise,  and  that  it  entered  as  an  ingredient 
into  the  marriage ;  and  the  husband  cannot,  upon  finding,  after 
marriage,  that  his  wife,  while  single,  had  received  a  letter  from 
her  father,  promising  a  certain  allowance,  hold  the  latter  to 
specific  performance.4  The  promise  of  a  third  party  may  be  for 
the  wife's  benefit;  or  it  may  be  for  the  mutual  benefit  of  the 
married  parties,  and  enforceable  accordingly.5 

1    Logan   '•.   Wienholt,  1   CI.  &  Fin.  4  Ayliffe  v.  Tracy,  2  P.  Wms.  66: 

611  ;  ETammersley  <•.  De  Biel,  12  CI.  &  Madox  v.  Xowlan,  Beatty,  632. 

I-  in    15  ;  Moorhouse  ».  Colvin,  15  Beav.  6  Thus,  in  a  recent  English  case  the 

.';r»;   Kinnard   v.    Daniel,  13  B.  Monr.  estate  of  a  father  was  held  bound  by 

196     17  Ch.  D.  861,  365.  his  written  statements  of  intention  to 

-  Kinnard   v.   Daniel,    13  B.   Monr.  settle  the  whole  of  his  property  upon 

496;  Montgomery  v.  Henderson,  3  Jones  his  daughter,  on  die  strength  of  which 

Eq.  M3.  she  married  ;  and  this,  notwithstanding 

■'■  Powle   v.    Freeman,   '.»   Vea.   315 ;  the  father,  heing  at  the  time  a  widower, 

Card   v.   Jaffray,  ii  Sch.  &  Lef.  384;  remarried  afterwards  and  left  a  widow. 

Chambers  v.  Sallie,  29  Ark.  407  j  White  Coverdale  v.  Eastwood,  L.  11.  15  Eq. 

v.  Bigelow,  154  Mass.  593.  121;  a  harsh  case,  truly. 

274 


CHAP.  XIII.]         ANTENUPTIAL  SETTLEMENTS.  §  180 

Courts  of  equity  have  frequently  refused,  however,  to  enforce 
marriage  agreements  on  the  ground  of  their  being  inconsistent, 
uncertain,  and  unintelligible  j1  and  particularly  is  this  found  true 
of  loose  expressions  contained  in  letters  written  by  relatives  of 
the  married  parties,  upon  which  the  attempt  is  made  to  render 
them  chargeable  when  the  marriage  was  not  thereby 
induced.2 

§  179.  Effect  of  Statute  of  Frauds  ;  Lost  Settlements,  &c. — 
Under  the  English  Statute  of  Frauds,  and  similar  enactments  in 
various  American  States,  promises  "  in  consideration  of  marriage" 
are  required  to  be  in  writing  ;  and  hence  an  oral  promise  to  set- 
tle property  upon  an  intended  spouse  is  void.3  Cases  have 
arisen,  however,  under  the  Statute  of  Frauds,  where  the  mar- 
riage agreement  had  been  reduced  to  writing,  but  not  signed,  and 
yet  letters  passed  afterwards  between  the  parties,  referring  to 
the  agreement,  which  sufficed  to  establish  it.  In  general, 
a  letter  which  contains  the  terms  of  an  agreement,  or  refers  to 
another  paper  which  specifies  the  terms,  is  sufficient  to  take  the 
contract  out  of  the  Statute  of  Frauds  ;4  but  not  the  mere  frag- 
ment of  an  unsigned  letter  or  other  insufficient  writing  adduced 
to  aid  an  oral  promise.5  Where  an  antenuptial  contract  was 
made  but  accidentally  lost  or  destroyed,  secondary  proof  of  its 
terms  may  be  furnished.6 

§  180.  General  Requirements  ;  Trustee,  &c.  —  Antenuptial 
agreements  are  so  liable  to  misapprehension  and  fraud,  that 
they  will  not  be  enforced  in  equity  unless  the  court  is  satisfied 
that  they  were  made,  and  that  the  marriage  consideration  really 
entered  into  the  contract.7     If  in  the  form  of  a  writing,  due  de- 

1  Franks  v.  Martin,  1  Eden,  309  ;  Lloyd  v.  Fulton,  91  U.  S.  479 ;  Flen- 
Kay  v.  Crook,  3  Jur.  n.  s.  107  ;  Peachey,  ner  v.  Flenner,  29  Ind.  569;  Henry  v. 
Mar.  Settl.  68 ;  Quinlan  v.  Quinlan,  Henry,  27  Ohio  St.  121  ;  104  Mo.  1  ; 
Hayes  &  Jones,  Ir.  Rep.  785 ;  Maunsell  §§  172,  175. 

v.  White,  1  Jo.  &  Lat.  539.  4  Hammersley  v.  De  Biel,  12  CI.  & 

2  Hincks  v.  Allen,  28  W.  R.  533.  Fin.  45 ;  Moorhouse  v.  Colvin,  15  Beav. 
As  to  carrying  out  the  wishes  of  a  349;  Peachey,  Mar.  Settl.  67;  3  Bro. 
third    party    respecting     property    de-  C.  C.  263. 

vised  so  as  to  settle  it  upon  marrying,  5  White  v.  Bigelow,  154  Mass.  593. 

see  Teasdale  v.  Braithwaite,  5  Ch.  D.  6  West  v.  Walker,  77  Wis.  557. 

630.  i  e0ies  ,,.  Trecothick,  9  Ves.  250; 

3  Tawney  t\  Crowther,  3  Bro.  C.  C.  Franks  v.  Martin,  1  Eden,  309  ;  Kay  v. 
263;  Coles  v.   Trecothick,  9  Ves.  250-  Crook,  3  Jur.  n.  s.  107;  Montgomery 

275 


§  181  THE   DOMESTIC    RELATIONS.  [PART   II. 

livery  should  appear;  though  if  the  written  contract  be  produced 
from  the  proper  custody,  and  its  execution  proved,  proper 
delivery  is  readily  presumed.1  Where  duly  made  and  delivered, 
such  settlements  may  be  cancelled ;  but  whether  a  mutilated 
instrument  was  intentionally  cancelled  or  not  is  matter  for 
proof.2 

Under  modern  rules  of  separate  use,  a  valid  marriage  settle- 
ment may  be  made  without  the  designation  of  a  trustee ;  though 
in  such  contracts,  when  drawn  up  with  due  formality,  trustees 
are  commonly  interposed  outside  the  marriage  relation,  however, 
who  hold  the  legal  title ;  and  such  is  unquestionably  the  more 
prudent  arrangement.3  The  contract  in  contemplation  of  mar- 
riage is  so  favorably  regarded,  that  where  the  intended  husband 
gave  his  verbal  assent  to  whatever  disposal  by  will  his  intended 
wife  might  make  of  her  personal  property,  and  she  executed  a 
will  liberal  enough  in  its  provision  for  him,  which  gave  the  resi- 
due to  other  objects,  the  instrument,  though  necessarily  re- 
voked as  a  will  by  her  subsequent  marriage,  was  once  allowed 
to  stand  as  an  antenuptial  settlement.4 

§  181.  Secret  Settlement  before  Marriage  ;  Fraud  of  a  Spouse.  — 
A  secret  settlement  or  voluntary  transfer  in  whole  or  in  part  of 
her  property  made  by  a  woman  upon  third  persons,  while 
engaged,  and  contemplating  marriage,  is  liable  to  be  set  aside  in 
equity  as  a  fraud  upon  the  marital  rights  of  her  intended  hus- 
band, at  the  husband's  instance,  when  he  learns  of  it.  Prima 
facie,  her  transactions  as  a.  feme  sole  with  reference  to  her  own 

v.  Henderson,  3. Jones  Eq.  113 ;  Peachey,  8  Cochran   v.   McBeath,   1  Del.  Ch. 

.Mar.  Settl.  68;  Kinnard  v.  Daniel,  13  187;  Peachey,  Mar.    Settl.   260;    Hay- 

B.  Monr.  I'n,.  mond  v.  Lee,  33  Gratt.  317;  Schouler, 

J   In   Smith   v.   Moore,  3  Green  Ch.  Hue.  &  Wife,  §  356. 
485,  the  document  being  found   in  the         4  Lant's  Appeal,  95  Penn.  St.  279. 

husband's    possession   after   his   death,  But  see  §  176;  100  Penn.  St.  590.     A 

execution    proved,   ami   also  his  recog-  written  contract  to  this   effect  was  up- 

iiiti'/n  during  his  lifetime,  due  delivery  held  in  Osgood  v.  Bliss,   141  Mass.  474. 

was  presumed.  That  which  is  purely  the  will  of  a  single 

-  Barclay    v.   Waring,  58  Ga.    86.  woman  is  revoked  by  ho-  subsequent 

nmmary  >>f  doctrine   in    Bold  v.  marriage,   even    though   her   intended 

Hutchinson,  20    Beav.  259;    Schouler,  husband  assents  to  it.     Craft's  F.state 

I  In-.  ■;    Wile,  g  855,     As  to  an  ante-  (1894),  Penn.;  Stewart  v.  Mulholland, 

nuptial  '"ii  eyance  of  land  to  a  trustee  88  Ky.  38. 
t<i  st.-uei  seised  to  the  female  grantor's 
.    II    109. 
276 


CHAP.  XIII.]  ANTENUPTIAL   SETTLEMENTS. 


181 


property  are  valid  Loth  at  law  and  in  equity ;  it  is  only  because 
of  the  fraud  that  her  husband  can  afterwards  obtain  relief 
against  them  ;  yet  the  English  courts  have  gone  far  in  discoun- 
tenancing all  conveyances  made  by  the  intended  wife  in  deroga- 
tion of  the  property  rights  of  her  intended  husband,  where  made 
without  notice  to  him.1  The  secrecy  of  the  proceeding  is  a 
material  element,  from  which  fraud  will  be  inferred.2 

The  same  general  doctrine  has  been  repeatedly  declared  in 
the  courts  of  this  country  ;  and  secret  and  voluntary  convey- 
ances, made  by  a  woman  contemplating  marriage,  may  be  set 
aside  on  the  husband's  subsequent  application  as  a  fraud  upon 
his  marital  rights,3  under  the  same  qualification  that  the  in- 
tended spouse  was  thereby  defrauded.4 

If  the  wife's  transfer  or  conveyance  to  another,  under  such  cir- 
cumstances, be  without  valuable  consideration  to  herself,  there 
is  the  less  reason  why  equity  should  uphold  it;5  and  if  it  be  in 
plain  derogation  of  her  own  interests,  as,  for  instance,  to  some 
insolvent  relative  to  hold  in  trust  for  her,  or  so  as  to  suggest  that 
fraud  or  coercion  was  practised  upon  her,  it  is  for  the  common 
nuptial  interests  that  courts  of  chancery  repudiate  the  arrange- 
ment altogether.6     By  virtue  of  late  statutory  changes  tending  to 


1  Peachey,  Mar.  Settl.  142,  and  cases 
cited;  11  C.  B.  1035;  St.  George  v. 
Wake,  1  Myl.  &  K.  618;  Macq.  Hus.  & 
Wife,  36  ;  England  v.  Downes,  2  Beav. 
522 ;  2  Ch.  Eep.  81  ;  1  Eq.  Cas.  Ab.  59, 
pi.  1. 

a  England  v.  Downes,  2  Beav.  522 ; 
Macq.  Hus.  &  Wife,  36.  The  husband 
must  have  been  kept  in  ignorance  of 
the  transaction  up  to  the  moment  of 
marriage.  For,  as  Lord  Chancellor 
Brougham  once  observed,  if  a  man, 
knowing  what  has  been  clone,  still 
thinks  fit  to  many  the  lady,  he  cannot 
be  permitted  to  allege  afterwards  that 
he  has  been  deceived.  St.  George  v. 
Wake,  1  Myl.  &  K.  610.  Actual' con- 
currence on  the  part  of  the  intended 
husband  in  his  wife's  settlement  will  be 
even  more  conclusive  against  him;  and, 
even  though  he  were  a  minor,  will 
preclude  all  subsequent  allegations  of 


fraud  on  the  marital  right.  2  Bro.  C. 
C.  545.  It  is  the  usual  practice  with 
English  conveyancers  at  the  present 
day  to  make  the  intended  husband  a 
party  to  all  instruments  executed  by 
the  intended  wife  in  contemplation  of 
or  during  a  treaty  of  marriage.  Peaehey, 
Mar.  Settl.  155. 

3  2  Kent,  Com.  174,  175,  and  notes, 
12th  ed. ;  Spencer  v.  Spencer,  3  Jones 
Eq.  404;  Tucker  v.  Andrews,  13  Me. 
124,  128;  Williams  v.  Carle,  2  Stockt. 
543  ;  Freeman  v.  Hartman,  45  111.  57 ; 
Baker  v.  Jordan,  73  N.  C.  145;  Hall  v. 
Carmichael,  8  Baxt.  211. 

4  Schouler,  Hus.  &  Wife,  §  357 ; 
Gregory  v.  Winston,  23  Gratt.  102. 
And  see  Green  v.  Green,  34  Kan. 
740. 

5  Baker  v.  Jordan,   73   N.  C.   145 
Fletcher  v.  Ashley,  6  Gratt.  332. 

6  Hall  v.  Carmichael,  8  Baxt.  211. 

277 


§  182  THE   DOMESTIC    RELATIONS.  [PART   II. 

relieve  a  husband  of  a  wife's  antenuptial  debts,  or  of  other  com- 
mon-law burdens,  on  her  account,  the  husband  may  sometimes 
stand  in  equity  on  the  stronger  footing  of  a  defrauded  creditor, 
where  he  seeks  to  have  the  secret  conveyance  of  his  affianced 
set  aside  in  his  favor.1 

A  corresponding  rule  as  to  fraud  would,  doubtless,  apply  to  a 
husband,  who,  before  marriage,  had  made  a  secret  transfer  or 
conveyance  of  his  own  property  to  his  wife's  injury ;  not,  how- 
ever, without  regard  to  the  difference  which  subsists  at  law 
between  their  marital  rights  in  each  other's  property.2  Indeed, 
it  is  sometimes  said  that  any  designed  and  material  conceal- 
ment regarding  one's  own  property,  whereby  a  secret  transfer  of 
importance  to  a  third  party  is  made  or  a  marriage  settlement 
procured  from  the  betrothed  party  quite  unfair  and  dispropor- 
tionate to  their  mutual  fortunes,  ought  to  avoid  an  antenuptial 
contract  at  the  will  of  the  spouse  who  has  been  thereby  injured.3 
As  against  the  transferee  from  either  spouse,  it  may  be  an  essen- 
tial question  whether  he  was  cognizant  or  not  of  the  fraudulent 
purpose.4 

§  182.  Reforming  Marriage  Settlements;  Portions,  &c. — Mar- 
riage articles,  to  make  a  settlement  of  real  property,  should  be 
drawn  up  only  in  extreme  cases ;  though,  in  the  case  of  person- 
alty, more  latitude  may  be  allowed ;  and  when  drawn  up  they 
should  leave  as  little  to  construction  as  possible.  Yet  marriage 
articles  are  frequently  prepared  in  great  haste,  and  many  ques- 
tions must  necessarily  arise  as  to  the  intention  of  the  parties ; 

1  TVesterman  v.  Westerman,  25  Ohio  Penii.  St.  406  ;  Achilles  v.  Achilles,  137 
St.  500.     But  see  Powell  v.  Manson,  22     111.  589. 

Gratt.  177.  4  A  mortgage  of  land  secretly  exe- 

2  See  Leach  v.  Duvall,  8  Bush,  201  ;  cuted  by  an  intended  husband  to  defeat 
Gainor  r.  Gainor,  26  Iowa,  337 ;  Murray  his  intended  wife's  dower  was  avoided 
v.   Mnrray,  90  Ky.   1.     Lapse  of  time  in  Kelly  v.  McGrath,  70  Ala.  75. 

and    other  circumstances   may  remove  The  parties  to  an  antenuptial  con- 

any  presumption  of  fraud  or  unfairness  tract  after  betrothal  stand  in  so  confi- 

on  his  part,     Butler  v.  Butler,  21   Kan.  dential  a  relation  to  one  another  that  a 

:>i\ .      I  'or  a  gross  case  induced  by  the  want  of  good  faith  on  the  pari  of  one  of 

mother  on  the  eve  of  her  son's  mar-  them  will  justify  the  other  in  impeach- 

riage,  si  e  79  Iowa,  555.  ing    after    marriage     the    antenuptial 

'•   Kline   V.   Kline,  57   Penn.  St.  120;  arrangement.     137    111.    589;    Pulling, 

Kline'     E  tab    64    Penn.  St.   122;  124  Re,  93  Mich.  274;  Lamb  v.  Lamb,  130 


Ind.  273. 


278 


CHAP.  XIII.]  ANTENUPTIAL    SETTLEMENTS.  §  183 

these  the  courts  of  equity  endeavor  to  meet  by  adopting  the 
intention  of  the  parties  as  their  true  guide,  and  taking  it  for 
granted  that  the  articles  are  merely  minutes  which  the  settle- 
ment may  explain  more  at  large,  but  which  are  not  to  be  liter- 
ally followed.1  The  general  rule  as  to  reforming  settlements 
framed  upon  antenuptial  articles  is  thus  laid  down  by  Lord 
Chancellor  Talbot : 2  "  "Where  articles  are  entered  into  before 
marriage,  and  settlement  made  after  marriage,  differing  from 
the  articles,  this  court  will  set  up  the  articles  against  the  settle- 
ment." That  is  to  say,  the  court  will  order  the  settlement  to 
be  reformed.3 

§  183.  Equity  corrects  Mistakes  or  sets  aside  ;  Fraud  and  Im- 
providence. —  Mistakes  in  marriage  settlements,  either  through 
error  or  fraud,  will  in  general  be  corrected  in  equity  ;  the  prin- 
ciple being  that  the  parties  are  to  be  placed  in  the  same  situa- 
tion in  which  they  would  have  stood  if  the  error  to  be  corrected, 
or  the  fraud,  had  not  been  committed.4  Owing,  moreover,  to 
the  confidential  relation  which  subsists  between  the  parties,  an 
antenuptial  contract  which  appears  to  have  been  unfairly  pro- 
cured will  be  set  aside.5     The  provisions  of  an  antenuptial  set- 

1  Peachey,  Mar.  Settl.  89-97  ;  Macq.  Marriage  articles  under  which  par- 
Hus.  &  Wife,  257  ;  Trevor  v.  Trevor,     ties  agree  to  make  a  settlement  and  yet 

1  P.  Wms.  631  ;  Blandford  v.  Marl-  fail  to  do  so,  may,  apart  from  the  par- 
borough,  2  Atk.  545  ;  Rochfort  v.  Fitz-  tial  performance  which  marriage  might 
manrice,  Dru.  &  War.  18.  But  see  be  said  to  establish,  afford  one  the 
Breadalbane  v.  Chandos,  2  Myl.  &  Cr.  right  to  damages  as  against  the  other. 
711.  Jeston  v.  Key,  L.  B.  6  Ch.  010. 

2  Legg  v.  Goldwire,  Forrester,  20;  4  Rooke  v.  Lord  Kensington,  2  Kay 
Macq.  Hus.  &  Wife,  259.  &  Johns.  770  ;  Peachey,  Mar.  Settl.  565, 

3  Legg  v.  Goldwire,  Forrester,  20.  576 ;  Sanderson  v.  Robinson,  6  Jones 
See  Peachey,  Mar.  Settl.  135  ;  Bold  v.  Eq.  155  ;  Love  r.  Graham,  25  Ala.  187  ; 
Hutchinson,  2  Jur.  n.  s.  97  ;  5  De  G.  Walker  v.  Armstrong,  2  Jur.  n.  s.  962 ; 
M.  &  G.  567.  As  to  portions  for  chil-  Brown  v.  Bonner,  8  Leigh,  1  ;  Cook  v. 
tlren,  &c,  see  Schouler,  Hus.  &  Wife,  Fearn,  27  W.  R.  212  ;  Brown  r.  Brown, 
§  359  ;  I  Atk.  522 ;  Wallace  v.  Wallace,  31  Gratt.  502;  Russell's  Appeal,  75 
82  111.  430 ;  Russell  v.  St.  Aubyn,  L.  R.  Penn.  St.  269.     Correction  made  after 

2  Ch.  D.  398.  the   death   of    a    spouse,    in  Burge   v. 

And  curiously  enough  in  an  English  Burge,  45  Ga.  301. 
case  under  this  head,  though  the  settle-  5  Pierce    v.    Pierce,  71    N.  Y.   154; 

ment  followed  the  precise  words  of  the  Daubenspeck   v.   Biggs,    71    Ind.    255; 

marriage  articles,  the   court   reformed  Pond   v.   Skeeu,  2  Lea,  126 ;    Russell's 

it,  in  order  to  carry  out  the  actual  inten-  Appeal,  75  Penu.  St.  269  ;  §  181. 
tion  of  the  parties.     West  v.  Errissey, 
2  P.  Wms.  350. 

279 


§  183  THE    DOMESTIC    RELATIONS.  [PART    II. 

tlement  are  beneficially  construed,  if  possible.1  The  rules  of 
equity  concerning  a  married  woman's  separate  use,  and  its 
limited  subjection  to  her  separate  engagements  may  be  here 
invoked.2  Equity,  moreover,  sometimes  refuses  to  enforce  an 
antenuptial  settlement,  as  between  husband  and  wife,  not  only 
because  of  its  fraudulent  character  as  regards  the  one  or  the 
other  party,  but  on  the  ground  that  it  is  improvident;3  yet 
relief  of  this  sort  is  rarely  afforded,  and  especially  so  where  a  third 
party,  or  the  husband,  not  the  wife,  seeks  it.4  And  while  the 
intended  wife  may,  perhaps,  in  an  extreme  case  be  relieved  from 
an  antenuptial  contract  which  bears  very  harshly  upon  her  prop- 
erty rights,  as  though  defrauded  and  deceived  in  the  arrange- 
ment, there  is  no  doubt  that  where  she  is  of  competent  age  she 
may  bargain  away  her  rights  quite  extensively  under  a  marriage 
contract,  as  her  husband  likewise  could  have  done ;  provided,  of 
course,  that  her  deliberate  intention  to  do  so  be  made  manifest ; 
and  in  this  state  of  the  law  it  certainly  becomes  a  matter  of 
serious  question  what  these  fundamental  property  rights  may  be 
under  a  rule  of  public  policy  which  spouses  ought  not  recipro- 
cally to  relinquish.5 

1  1 1  Lea,  489.  settlement.     The    wife    may    even    be 

-  Prentiss  v.  Paisley,   25  Fla.  927  ,  authorized  thus  to  dispose  freely  of  her 

§§  L34-136.  own   property   without    her  husband's 

3  Evoritt  v.  Everitt,  L.  R.  10  Eq.  consent  or  concurrence.  Williamson  v. 
405:  Dillaye  v.  Greenough,  45  N.  Y.  Yager,  91  Ky.  282;  Beardsley  v.  Hotch- 
438;  25  Fla.  153.  kiss,   9G  N.   Y.   201.      But  such  power 

4  As  to  construction  of  antenuptial  must  not  be  defectively  executed  by 
settlements,  see  Schouler,  Hus.  &  Wife,  her.  101  111.  242.  One  may  thus  be 
§  361.  Such  settlements  may  renounce  held  bound  to  claim  no  rights  whatever 
legal  rights  of  the  survivor  in  the  estate  or  only  some  specified  interest  in  the 
<>f  the  spouse  first  dying.  lb.  §362.  other  spouse's  estate  as  survivor.  Lud- 
Or  provide  for  settling  after-acquired  wig's  Appeal,  10]  Penn.  St.  535;  61 
property.     lb.  §364.  Md.  436,  517;  22  W.  Va.   130;  Young 

5  Yeaton  v.  Yeaton,  4  111.  App.  579;  v.  Hicks,  92  X.  Y.  235;  139  Mass.  144; 
II.,!.  r   v.    Safer,  33    Kan.   449.     Such     109  111.  225;  63  Iowa,  55;  Hugeley  v. 

ations,  however,  as  e.  g.  to  dispose  Lanier,  86  Ga.  637  ;  Carter's  Appeal,  59 
by  will,  must,  if  made,  be  respected.  Conn.  576;  McNutt  v.  McNutt,  116 
Bishop  v.  Wall,  3  Ch  I).  194;  Rogers  End.  545;  91  Tenn.  241  ;  112  Mo.  442. 
i)  Cunningham,  51  Ga.  40;  Russell's  A  resulting  trust  may  be  established 
Appeal,  75  Penn.  St  269;  Reynolds  v.  in  investments  protected  to  a  wife  by 
Brandon,  3  Heisk  593.  Buch  settlement.  39  Ohio  St.  259. 
There  may  be  a  power  of  disposi-  And  specific  performance  of  the  sec- 
tion in  the  wife  to  be  exercised  bj  a  tlement  will  be  enforced  as  against 
will    or    otherwise    provided,  in    such  either  spouse  and  third  parties  having 

280 


CHAP.  XIII.]  ANTENUPTIAL   SETTLEMENTS. 


§  183  a 


A  court  of  law  will  recognize  the  legal  title  of  a  wife  in  her 
property  at  the  time  of  marriage,  as  continuing  to  exist  against 
the  effect  of  coverture  where  there  has  been  an  appropriate 
antenuptial  agreement.1  And  transactions  after  marriage  based 
upon  such  agreements  are  sustained  in  equity,  at  all  events,  if 
legal  remedies  are  inadequate.2 

§  183  a.  Rescission  or  Avoidance  of  a  Marriage  Settlement. — 
Aii  antenuptial  settlement  made  in  good  faith  upon  a  valid 
consideration  is  not  to  be  rescinded  by  parol  after  the  marriage.3 
And  the  trust  of  the  intended  spouses  in  favor  of  their  next  of 
kin  who  are  volunteers  is  not  revocable  by  them.4  But  deser- 
tion without  just  cause,  or  unfaithfulness  to  the  marriage  obli- 
gations, is  held  a  bar  to  enforcement  of  the  settlement  by  the 
delinquent  party.5  A  positive  antenuptial  contract,  it  is  held, 
cannot  be  avoided  by  an  arbitrary  refusal  of  the  man  to  marry  ;6 
but  where  both  man  and  woman  mutually  decide  not  to  marry, 
they  may  have  the  settlement  broken  up."  A  power  of  mu- 
tual revocation  is  sometimes  prudently  reserved  in  a  deed  of 
settlement.8 


notice.  Stratton  v.  Stratton,  58  N.  II. 
473. 

As  to  breach  and  forfeiture  of  rights 
under  a  settlement,  see  Schouler,  Hus. 
&  Wife,  §  368.  Marriage  settlements 
are  very  common  in  England,  among 
parties  possessed  of  large  means  ;  not 
generally  so  in  this  country,  although 
many  are  made  in  the  Southern  States 
and  elsewhere.  The  American  policy 
is  to  dispense  with  trusts,  and  place  a 
married  woman's  separate  property  in 
her  own  absolute  keeping.  Yet  mar- 
riage settlements  might  often  be  well 
resorted  to  in  order  to  equalize  the 
burdens  and  privileges  of  matrimony, 
•while  our  local  legislation  remains  in 
its  present  crude  condition.  If  settle- 
ments of  property  are  made  to  the 
wife's  separate  use,  the  usual  equitable 
rules  apply,  as  to  making  the  property 
liable  for  her  debts  and  engagements. 

The  local  registry  system  in  the 
United  States  raises  questions  of  con- 


structive notice  as  to  marriage  set- 
tlements and  the  property  embraced 
therein.  Schouler,  Hus.  &  Wife,  §  369  ; 
66  Ga.  720  ;  75  Mo.  239. 

1  Willard  v.  Dow,  54  Vt.  188.  The 
intended  spouses  may  expressly  agree 
that  the  wife's  acquisitions,  &c,  shall 
be  her  separate  estate.     82  Ky.  129. 

2  Sanders  v.  Millers,  79  Ky.  517. 

3  Craig  r.  Craig,  90  Ind.  215. 

*  Paul  v.  Paul,  19  Ch.  D.  47  ;  20 
Ch.  D.  742;  overruling  15  Ch.  D.  580. 

As  to  their  legal  liabilities  to  others, 
such  as  an  antenuptial  debt  due  to  the 
wife's  creditor,  see  75  Va.  380. 

5  York  v.  Ferner,  59  Iowa,  587.  Cf. 
87  Mo.  437. 

6  Conner  v.  Stanley,  65  Cal.  183.  A 
marriage  settlement  is  to  be  construed 
by  the  law  existing  at  the  time  of  its 
execution.     73  Ga.  575. 

7  Essery  w.  Cowland,  26  Ch.  D.  191 

8  Gaither  v.  Williams,  57  Md.  625, 

281 


184  THE   DOMESTIC   RELATIONS.  [PAET   II. 


CHAPTER   XIV. 

POSTNUPTIAL   SETTLEMENTS  ;    GIFTS   AND    GENERAL    TRANSACTIONS 
BETWEEN    SPOUSES. 

§  184.  Postnuptial  Settlements  distinguished  from  Antenuptial ; 
Gifts  between  Spouses.  —  The  important  distinction  between 
settlements  before  and  settlements  after  marriage  is  that,  while 
the  former  have  the  marriage  consideration  to  support  them, 
the  latter  are  without  it.1  The  term  "  postnuptial  settlements," 
then,  must  not  confuse  the  reader's  mind.  We  use  the  language 
of  the  text-writers  without  meaning  to  imply  that  it  is  appro- 
priate, or  that  antenuptial  and  postnuptial  settlements  consti- 
tute two  branches  of  one  general  subject.  On  the  contrary, 
postnuptial  settlements  are  usually  nothing  more  nor  less  than 
gifts  of  real  or  personal  property,  or  of  both,  between  husband 
and  wife,  which  equity  places,  notwithstanding  the  disabilities 
of  coverture,  upon  the  footing  of  other  gifts  ;  2  though  sometimes 
they  are  upon  valuable  consideration  between  the  spouses  such 
as  our  modern  marital  legislation  establishes.3  Furthermore,  it 
should  be  remembered  that  formal  settlements  made  between 
parties  in  the  marriage  state,  in  pursuance  of  articles  or  memo- 
randa signed  before  marriage,  are  not  technically  postnuptial 
settlements  (as  the  name  itself  would  seem  to  indicate) ;  for 
the  settlement  relates  back  to  the  antenuptial  stipulations, 
however  loosely  these  may  have  been  drawn  up,  and  it  is  pro- 
tected by  the  marriage  consideration,  like  all  other  antenuptial 
contracts. 

But  though,  for  want  of  consideration,  postnuptial  settle- 
ments are  deemed  voluntary,  yet,  like  other  voluntary  trans- 
actions, they  will  be  valid  and  binding,  so  far  as  the  parties 
are  concerned,  and  can  only  be  impeached  as  fraudulent  upon 

1  Supra,  §  172;  Lannoy  v.  Duke  of  the  word  here  in  its  wider  sense.  2 
Athol,  -2.  At!,    i  i-  Schouler,  I'ers.  Prop.  55. 

G  ft,"  in  the  more  technical  sense,        8  See  §  188. 
concerns  p<  rsonal  property,  but  we  use 

282 


CHAP.  XIV.]  POSTNUPTIAL    SETTLEMENTS.  §  186 

others.  Postnuptial  settlements,  therefore,  must  be  viewed  in 
two  different  aspects:  (1)  as  between  the  married  parties  and 
the  creditors  or  purcl lasers  of  either ;  (2)  as  between  husband 
and  wife  themselves.     These  we  shall  consider  in  order. 

§  185.  Postnuptial  Settlements  as  to  Creditors  and  Pur- 
chasers ;  Statutes  13  Eliz.  and  27  Eliz.  — There  are  two  English 
statutes  which  control  this  subject,  as  concerns  creditors  and 
purchasers,  to  a  great  extent,  wherever  the  husband  makes  a 
postnuptial  settlement  upon  his  wife  and  offspring.  The  first 
is  that  of  13  Eliz.  c.  5,  in  favor  of  creditors  ;  the  second  that 
of  27  Eliz.  c.  4,  in  favor  of  purchasers ;  the  one  being  directed 
against  fraudulent  conveyances  of  all  property  with  intent  to 
defeat  or  delay  creditors  ;  the  other  against  fraudulent  or  vol- 
untary conveyances  of  lauds  designed  to  defeat  subsequent 
purchasers.  These  statutes,  Lord  Mansfield  said,  cannot  receive 
too  liberal  a  construction  or  be  too  much  extended  in  suppres- 
sion of  fraud.1  The  bankrupt  acts  are  material  to  consider  in 
the  former  connection. 

§  186.  Same  Subject;  Statute  13  Eliz.;  Bankrupt  Acts.  —  As 
to  the  first  of  these  statutes,  it  is  held  that,  if  a  man  who  is 
indebted  conveys  property  for  the  use  of  his  wife  and  children, 
or  in  trust  for  their  benefit,  such  a  conveyance  is  subject  to  the 
statute  prohibition,  inasmuch  as  the  consideration,  although 
good  between  the  parties  themselves,  is  not  bona  fide  as  regards 
creditors.2  But  a  voluntary  deed  is  good  as  against  subsequent 
creditors ;  and  there  can  be  nothing  inequitable  in  a  man's 
making  a  voluntary  conveyance  to  a  wife,  child,  or  even  a 
stranger,  if  it  be  not  prejudicial  at  the  time  to  the  rights  of 
third  persons,  or  in  furtherance  of  some  design  of  future  fraud 
or  injury  to  them.3  The  question  of  fraudulent  intent  is  the 
real  point  at  issue.  And  as  to  fraud  upon  future  creditors,  it 
has  been  said  that  while  an  instrument  might  be  executed  with 
the  purpose  of  defrauding  them,  it  is  not  a  thing  very  likely  to 
happen.4     The  property  which  may  be  recovered  by  creditors 

1  Cowp.  434;  Peachey,  Mar.  Settl.  »  Holloway  t\  Millard,  1  Madd.  414; 
189.  Peachey,  Mar.  Settl.  192. 

2  Goldsmith  v.  Russell^ 5  De  G.  M.  4  Jenkyn  v.  Vaughan,  25  L.  J.  Eq. 
&  G.  547  ;  Peachey,  Mar.  Settl.  191.  339  ;  Holmes  v.  Pennev,  3  Kay  &  Johns 

283 


§180  THE  DOMESTIC   RELATIONS.  [FART   II. 

does  not  embrace  property  which  is  exempt  from  execution ; 
for  the  creditors  have  no  concern  with  anything  except  assets, 
actual  or  possible,  for  the  payment  of  their  debts.1  This  was 
formerly  a  matter  of  dispute ;  but  it  is  now  apparently  set  at 
rest,2 

The  statute  of  13  Eliz.  c.  5,  is  generally  recognized  through- 
out the  United  States  ;  in  some  cases  having  been  formally 
re-enacted ;  in  others,  claimed  to  be  part  of  the  common  law 
transported  hither  by  the  first  settlers ;  and  hence  gifts  of 
goods  and  chattels,  as  well  as  voluntary  conveyances  of  lands, 
by  writing  or  otherwise,  are  void  when  made  with  intent  to 
delay,  hinder,  and  defraud  creditors,  even  though  the  gift  or 
conveyance  be  to  wife  and  children.3  For  it  is  a  maxim,  both 
at  the  civil  and  common  law,  that  the  claims  of  justice  shall 
precede  those  of  affection.4  And  in  general  the  rule  appears  to 
be  co-extensive  with  the  fraud  in  this  country  as  in  England. 
There  are  circumstances  from  which  fraud  upon  creditors  may 
be  inferred  without  requiring  them  to  prove  an  actual  intent  on 
the  husband's  part.5 

But  it  must  be  admitted  the  principle  is  not  stated  with  equal 
precision  in  all  the  States ;  and  while  some  cases  doubtless  pro- 
ceed upon  the  doctrine  that  the  voluntary  gift  fails  because 
there  is  an  intent  to  hinder  and  defraud,  others  again  seem  to 
rest  upon  the  mere  existence  of  actual  creditors  whose  rights 
are  thereby  impaired  or  prejudiced.  It  is  not  within  our  prov- 
ince to  treat  of  this  subject  in  its  general  bearings,  as  in  gifts 
lii-tween  man  and  man;  but  so  far  as  the  American  decisions 
concern  gifts  between  husband  and  wife,  we  shall  presently  give 

102.      See   further,    Schouler,    IIus.  &  cited  •,  Bayard  v.  Hoffman,  4  Johns.  Ch. 

Wife,  §  37'5,  and  cases  cited;  Jac.  552;  450;  Montgomery  v.  Tilley,  1  B.  Monr. 

Peachey,   Mar.    Settl.  195;  1    Atk.  93;  157 ;  Reade  v.  Livingston, 3  Johns.  Ch. 

ley  v.    Hooper,  2  Jur.  n.  s.  1031;  481;  Pinney  v.  Fellows,    15  Vt.  525; 

French  v.   French,  6  I)e  G.   M.  &  G.  Simpson  v.  Graves,  Riley  Ch.  232 ;  Sex- 

95.  ton  v.  Wheaton,  8  Wheat.  229;  1  Am. 

1  Peachey,   Mar.  Settl.  199  et  seq.\  Lead.  Cas.  1. 

1  Story,  Eq.  Juris.  §  410.     See  2  Kent,  4  Cicero,   de   Off.    I.  14,  cited  in  2 

Com.  143  n.,12thed.  Kent,  Com.  441. 

2  Evidence  of  hindering  creditors  6  See  rule  of  Schreyer  v.  Scott,  134 
lid- 1  insufficient  in  Mercer  cr  parte,  17  U.  S.  405,  and  other  cases  in  §187  notes 
Q,  B.  D  296  post;  Felker  v.  Chubb,  90  Mich.  24. 

8  2  Kent,  Com.  440,  441,  and  cases 
284 


CHAP.  XIV.]  POSTNUPTIAL    SETTLEMENTS.  §  18G 

the  results  somewhat  at  length.1  According  to  the  modern  cur- 
rent of  American  authorities,  mere  indebtedness  at  the  time  of 
a  settlement  is  only  presumptive  proof  of  fraud,  which  may  be 
explained  or  rebutted  ;  and  it  must  also  be  shown  that  the 
husband  was  insolvent,  or  that  the  settlement  directly  tended 
to  impair  the  rights  of  creditors.2  The  language  of  the  statutes 
in  some  States  contributes  to  the  confusion  which  prevails  as 
to  the  correct  legal  doctrine  on  this  whole  subject.  Further- 
more, our  registry  system  places  the  law  in  many  States  on  a 
somewhat  different  footing  from  that  prevalent  in  England,  in 
all  settlements,  as  we  noticed  in  the  preceding  chapter.3 

Voluntary  settlements,  in  England,  are  likewise  affected  by 
the  bankrupt  acts,  which  are  intimately  connected  with  the 
statute  of  Elizabeth.4  Here  questions  arise  as  to  what  acts 
amount  to  a  contemplation  of  bankruptcy,  and  what  consti- 
tute a  fraudulent  preference ;  and  these  we  need  not  here  dis- 
cuss. But  it  should  be  observed  that  the  husband  cannot 
bestow  his  property  upon  his  wife,  conditional  upon  his  future 
bankruptcy  or  insolvency ;  yet  that  third  persons  may,  by  vol- 
untary conveyance,  settle  property  to  the  wife's  separate  use, 
free  from  all  control  of  her  husband;  or  in  trust  to  pay  the 
income  to  the  husband  for  life,  "  or  until  he  should  become  a 
bankrupt,"  and  after  that  to  the  wife's  separate  use.5  In  the 
former  case  the  transaction  would  be  simply  an  artifice  of  the 
husband  to  evade  the  bankrupt  laws  ;  in  the  latter,  a  third 
person  parts  with  his  own  property,  and  makes  his  own  terms 
as  to  its  final  disposition,  as  he  has  a  right  to  do.6     Our  national 

1  See  2  Kent,  Com.  440  et  seq. ;  4  lb.  property  than  to  subsequent  creditors  of 
46.3  et  seq.,  where  the  subject  is  dis-  the  husband.  139  Penn.  St  399;  30  Neb. 
cussed  at  length,  with  citations  from  384.  Statutory  requirements,  such  as 
American  cases ;  post,  %  187  note,  with  registry,  may  affect  postnuptial  settle- 
American  citations  as  to  creditors  and  ments  in  various  States, 
purchasers;    Schouler,   Hus.   &    Wife,         *  Peachey,  Mar.  Settl.  210  et  seq. 

§  374.  5  Manning  v.  Chambers,  1  De  G.  & 

2  Post,  note,  §  187.  Sm.  282;  Sharp  v.  Cosserat,  20  Beav. 

3  Supra,  §  183,  n.  See  as  to  record-  473.  Provisions  for  one's  own  children 
ing  a  voluntary  deed  to  the  wife,  87  Ga.  are  liable  to  this  objection. 

217  ;  98  Ala.  443.     But  the  usual  record  6  Ware  v.  Gardner,  L.  R.  7  Eq.  31". 

of  deeds  is  held  constructive  notice  and  As   to    antenuptial    provisions  of    this 

a  harrier  rather  to  purchasers,  and  in-  character,  see  Schouler,  Hus.  &  Wife, 

cumbraucers  of  the  specifically  described  §  365. 

285 


§  187  THE   DOMESTIC    RELATIONS.  [PART    II. 

bankruptcy  system,  as  lately  existing,  also  affected  the  doctrine 
of  fraudulent  conveyances  in  the  United  States.1  With  the 
Bankrupt  Act  repealed,  however,  this  whole  subject  becomes 
regulated  by  State  insolvent  laws,  which  are  far  from  uniform 
in  their  scope  and  purpose.  As  to  artifices  by  a  husband  for 
keeping  his  own  property  under  his  own  control,  subject  to 
its  divestment  in  his  wife's  favor  upon  his  bankruptcy,  the 
American  rule,  like  the  English,  discountenances  them.2 

§187.  Same  Subject;  Stat.  27  Eliz.  —  Settlements  as  con- 
cerns the  right  of  creditors  and  purchasers  are  also  affected  by 
the  statute  of  27  Eliz.  c.  4.  This  statute,  too,  is  to  be  consid- 
ered as  part  of  the  common  law  brought  to  this  country  by 
our  ancestors ;  though  not  generally  adopted  here  to  the  full 
extent  of  the  English  equity  decisions.3  It  provides  that  all 
conveyances  of  lands,  made  with  the  intent  to  defraud  and 
deceive  purchasers,  shall,  as  against  them,  be  utterly  void. 
The  statute  has  no  application  whatever  to  personal  estate.4 

The  English  doctrine  is  that  a  voluntary  conveyance,  though 
for  a  meritorious  purpose,  shall  be  deemed  to  have  been  made 
with  fraudulent  views,  and  must  be  set  aside  in  favor  of  a 
subsequent  purchaser  for  a  valuable  consideration,  even  though 
he  had  notice  of  the  prior  deed.5  In  other  words,  while  the 
statute  of  13  Eliz.  permits  a  voluntary  conveyance  to  stand  as 
against  subsequent  creditors,  that  of  27  Eliz.  makes  a  voluntary 
conveyance  of  land  void  as  against  a  subsequent  purchaser  for 
value.  The  principle  on  which  the  English  cases  rest  appears 
to  be  that,  by  selling  the  property  over  again  for  a  valuable 
consideration,  the  vendor  so  entirely  repudiates  the  former 
transaction  and  shows  his  intention  to  sell,  that  the  presump- 
tion against  the  prior  gift  becomes  conclusive.6  And  while  the 
correctness  of  this  principle  might  well  be  doubted  in  its  appli- 
cation to  subsequent  purchasers  with  notice,  yet,  as  Lord  Thur- 
low  said,  so  many  estates  stand  upon  the  rule,  that  it  cannot  be 

1  Re  Alexander,  1  Lowell,  470.   Ami  4  Sugden,  Vend.  &  Purch.  587, 13th 

sc<-  /.''  .I'.nr-.  i;  liiss   oh.  ed.;  Peachey,  Mar.  Settl.  22(1;  4  Kent, 

-  Levering   v.    Heighe,   2    Mil.   Oh.  Com.  463. 

hi  ;  Head  <•.  Flalford,  5   Rich.  Eq.  128;  6  Doe  v.  Manning,  o  East,  59. 

Peigne  v.  Snowden    l  Deaaus.  591.  °  Doer.   Rusham,  17  Q.  15.  724  ;  16 

i  Kent,  <  inn.  468.  Jur.  :s.V.t. 

-si; 


CHAP.  XIV.]  POSTNUPTIAL   SETTLEMENTS.  §  187 

now  shaken.1  This  doctrine  applies  to  postnuptial  settlements 
in  England.2  Fortunately  in  this  country  we  have  been  ham- 
pered by  no  such  severe  construction  of  this  statute.  In  a 
case  before  the  Supreme  Court  of  the  United  States  it  was  held 
that  the  principle  of  construction  which  prevailed  in  England 
at  the  commencement  of  the  American  Revolution  went  no 
further  than  to  hold  the  subsequent  sale  to  be  presumptive,  and 
not  conclusive,  evidence  of  a  fraudulent  intent  in  making  the 
prior  voluntary  conveyance ;  and  the  court  declined  to  follow 
the  subsequently  established  construction  of  Westminster  Hall.3 
And  the  better  American  doctrine  seems  to  be  that  voluntary 
conveyances  of  land,  bona  fide  made,  and  not  originally  fraudu- 
lent, are  valid  as  against  subsequent  purchasers  having  record 
or  other  notice.4  But  a  parol  trust  between  husband  and  wife 
in  relation  to  land  is  of  no  effect  against  creditors  of  the  hus- 
band and  purchasers  without  previous  notice.5  And  parol 
language  which  might  establish  a  resulting  trust  as  between 
spouses  themselves,  may  be  defeated  as  to  creditors  and  pur- 
chasers by  conduct  inconsistent  with  a  gift.6 

In  some  States  the  English  statute  is  re-enacted  with  the 
language  essentially  changed  ;  as  in  Connecticut  aud  New  York. 
And  it  is  the  settled  American  doctrine  that  a  bona  fide  pur- 
chaser for  value  is  protected,  whether  he  purchases  from  a 
fraudulent  grantor  or  a  fraudulent  grantee ;  and  that  there  is 
no  difference  in  this  respect  between  a  deed  to  defraud  subse- 
quent creditors,  and  one  to  defraud  subsequent  purchasers  ;  both 
being  voidable  only  and  not  absolutely  void.7     As  to  negotiable 

1  Evelyn  v.  Templar,  2  Bro.  C.  C.  v.  Pratt,  32  Iowa,  296;  Peal  t'.  Warren, 
148 ;  Peachey,  Mar.  Settl.  228,  and  2  Gray,  447.  But  contra,  see  Clanton 
cases  cited.  v.  Burges.  2  Pev.  Ch.  13.     A  bona  fide 

2  See  Bill  v.  Cureton,  2  Myl.  &  K.  purchaser  is  not  to  be  charged  by  mat- 
510 ;  Peachey,  Mar.  Settl.  232,  240.  ter  of  which  he  has  no  actual  or  con- 
And  English  conveyancers  insert  words  structive  notice,  and  which  he  could  not 
importing  certain  valuable  considera-  readily  have  ascertained.  75  Md.  287  ; 
tions  in  such  deeds,  in  order  to  deter  55  Ark.  116. 

purchasers.  5  Page    v.    Gillentine,  6    Lea,  240 ; 

3  Cathcart  v.  Robinson,  5  Pet.  280.  Greenman  v.  Greenman,  107  111.  404. 

4  4  Kent,  Com.  464,  n.,  and  cases  6  Evans  v.  Covington,  70  Ala.  440  ; 
cited;  Jackson  v.  Town,  4  Cow.  603;  Williams's  Appeal,  106  Penn.  St.  116. 
Ricker  v.  Ham,  14  Mass.  139;  Atkin-  7  4  Kent,  Com.  464,  and  cases  cited 
son  v.  Phillips,  1  Md.  Ch.  507  ;  Shepard  in  notes  ;  Anderson  v.  Roberts,  18  Johns 

287 


187 


THE   DOMESTIC    RELATIONS. 


[PART   II. 


instruments  not  overdue,  too,  the  usual  equity  rule  may  apply, 
which  protects  in  general  the  rights  of  a  bona  jide  holder  for 
consideration  and  without  notice  of  adverse  claim  or  fraudulent 
intent.1     Property  settled  upon  one's  wife  ought  to  he  separated 


515;  Beau  v.  Smith,  2  Mason,  252; 
Eld  red  v.  Drake.  43  Iowa,  569  ;  Orien- 
tal Bank  v.  Haskins,  3  Met.  332.  So 
the  English  Stat.  3  &  4  Will.  IV.  c.  27, 
§  26,  protects  bona  Jide  purchasers  for 
value. 

1  Farmers'  Bank  v.  Brooke,  40  Mil. 
249. 

The  following  American  cases  may 
be  cited  with  reference  to  the  effect  of 
a  husband's  postnuptial  and  voluntary 
settlement  as  against  his  creditors,  &c. 
See  supra,  §  186.  In  several  States  it  is 
expressly  held  that  a  voluntary  transfer 
or  conveyance  from  husband  to  wife  is 
valid  against  all  subsequent  creditors 
and  purchasers.  United  States  Bank 
r.  Ennis,  Wright,  605;  Beach  v.  White, 
Walk.  Ch.  495;  Davis  v.  Herrick,  37 
Me.  397;  Story  v.  Marshall,  24  Tex. 
305 ;  Phillips  v.  Meyers,  82  111.  67.  A 
postnuptial  and  voluntary  settlement  is 
not  invalid,  it  is  declared  by  the  Supreme 
Court  of  the  United  States,  if  rights 
of  existing  creditors  be  not  impaired 
and  the  settlement  be  not  intended  as 
a  cover  to  future  schemes  of  fraud. 
Clark  v.  Killian,  103  U.  S.  766;  Jones 
v.  Clifton,  101  U.  S.  225.  In  New  Jer- 
sey, however,  the  rule,  as  concisely 
stated,  is  that  the  husband's  settle- 
ment, if  voluntary,  is  fraudulent  as 
isting  debts  by  an  inference  of 
law;  and  as  to  subsequent  debts,  fraud 
in  fact  must  lie  proved.  Annin  v. 
Annin,  24  N.  J.  Eq.  184;  Belford  v. 
Crane,  l  C.  E.Green,  265.  Existing 
creditors  deserve  special  solicitude. 
Shaw  v.  Manchester,  84  Iowa,  246;  88 
Ala.  620;  85  Wis,  214.  And  a  judg- 
ment creditor  in  particular.  98  Ala. 
4i:t;  55  Ark.  L16.  Bui  Chancellor 
K  'iit  has  ruled,  in  the  leading  Ameri- 
can case  on  this  abject,  that  if  a  set- 
tlement after  marriage  be  Bel  aside  by 
the  prior  creditors,  subsequent  credit- 


ors  are  entitled  to  come  in  and  be  paid 
out  of  the  proceeds  of  the  settled  es- 
tate. Keade  v.  Livingston,  3  Johns. 
Ch.  481.  That  intended  fraud,  and  this 
alone,  should  be  considered,  as  to  a 
husband's  subsequent  creditors,  in  case 
of  his  voluntary  settlement  for  his  wife 
and  children,  see  Mattingly  v.  Nye,  8 
Wall.  370;  Caswell  v.  Hill,  47  N.  H. 
407  ;  Phillips  u.YVooster,  36  N.  Y.  412; 
Place  v .  Rhem,  7  Bush,  585  ;  Niller  v. 
Johuson,  27  Md.  6 ;  Teller  v.  Bishop,  8 
Minn.  226.  The  husband's  condition 
as  to  his  creditors  is  to  be  regarded 
with  reference  to  the  time  he  made  the 
settlement  upon  his  wife,  not  with  ref- 
erence to  the  condition  subsequently 
of  his  estate  upon  his  death.  Leavitt 
v.  Leavitt,  47  N.  H.  329.  Concerning 
the  unfavorable  effect  of  a  secret  agree- 
ment between  husband  and  wife  upon 
the  rights  of  intervening  creditors,  ig- 
norant of  such  agreement,  see  Hatch 
v.  Gray,  21  Iowa,  29  ;  Annin  v.  Annin, 
24  N.  J.  Eq.  184;  Phelps  v.  Morrison, 
lb.  195.  A  husband's  voluntary  con- 
veyance may,  from  its  very  substance, 
be  void  as  to  all  creditors,  being  an  ar- 
tifice to  keep  his  property  out  of  his 
creditors'  bands  in  case  of  future  insol- 
vency while  using  it  in  trade.  Case  v. 
Phelps,  39  N.  Y.  164;  supra,  §  186. 
Equity  will  regard,  in  cases  of  this  sort, 
the  intent,  notwithstanding  a  compli- 
ance with  certain  formalities  of  trans- 
fer on  the  husband's  part.  Metropolitan 
Bank  v.  Durant,  22  N.J.  Eq.  35.  That 
as  to  existing  creditors,  the  husband's 
intent  to  defraud  may  be  inferred  from 
his  insolvency  or  embarrassment,  seethe 
late  cases  of  Redfield  v.  Buck,  35  Conn. 
328;  Gardner  v.  Baker,  25  Iowa,  343; 
Woolston's  Appeal,  51  Penn.  St.  152; 
Bertrand  v.  Elder,  23  Ark.  494 ;  Lloyd 
v.  Fulton,  91  U.  S.  479;  Myers  v.  King, 
42  Md.    65.      Tbo    New   York   rule  as 


CHAP.  XIV.]  POSTNUPTIAL   SETTLEMENTS. 


§188 


from  that  retained,  or  so  managed  that  the  husband's  creditors 
shall  not  be  misled  into  giving  him  credit  in  reliance  upon  the 
property  settled  upon  the  wife.1 

§  188.  Same  Subject ;  Settlement  upon  Valuable  Consideration, 
&c. — There  are  instances  in  which  a  postnuptial  settlement 
has  been  sustained  against  creditors  and  purchasers  on  the 
ground  that  a  valuable  consideration  is  interposed.2  Very  slight 
or  technical  considerations  are  often  held  sufficient  to  support  a 


most  recently  summed  up  by  the  federal 
Supreme  Court  with  its  own  approval, 
is  that  the  husband's  voluntary  convey- 
ance to  his  wife  is  good  as  against  his 
subsequent  creditors  unless  it  was  made 
with  intent  to  defraud  them,  or  unless 
they  were  misled  by  his  secrecy  in  the 
transaction  to  repose  faith  in  his  owner- 
ship, or  unless  the  transfer  was  made 
with  a  view  of  throwing  the  risks  of 
some  new  aud  hazardous  business  of  his 
own  upon  the  parties  having  dealings 
with  him.  Schreyer  v.  Scott,  134  U.  S. 
405.  The  effect  of  such  a  rule  is  to  es- 
tablish that  actual  intent  to  defraud 
creditors  need  not  always  be  shown 
against  the  husband.  And  see  Felker 
v.  Chubb,  90  Mich.  24. 

The  right  of  a  husband  to  settle  the 
surplus  of  property,  over  and  above 
what  he  then  owes,  for  the  benefit  and 
future  comfort  of  wife  and  children,  is 
liberally  considered  in  Gridley  v,  Wat- 
son, 53  111.  186;  Vance  v.  Smith,  2 
Heisk.  343;  Brookbauk  v.  Kennard,  41 
Ind.  339 ;  White  v.  Bettis,  9  Heisk. 
645  ;  131  Penn.  St.  385.  But  even  here 
it  is  proper  that  abundant  means  for 
creditors  should  be  reserved,  nor  should 
such  a  settlement  be  with  a  view  of  in- 
curring debts  in  the  future.  Allen  v. 
Walt,  9  Heisk.  242. 

For  instances  where  a  husband's 
voluntary  conveyance  to  his  wife  has 
been  set  aside  as  in  fraud  of  creditors, 
see  Clarke  v.  McGeihan,  25  N.  J.  Eq. 
423;  Watson  v.  Biskamire,  45  Iowa, 
231  ;  Annin  v.  Annin,  24  N.  J.  Eq.  184. 
See  further,  Davidson  v.  Lanier,  51 
Ala.  318;  Bowser  v.  Bowser,  82  Penn. 
19 


St.  57 ;  Nippes's  Appeal,  75  Penn.  St. 
472. 

"  Fraud,"  observes  Mr.  Justice 
Swayne  in  a  recent  case,  "  is  always  a 
question  of  fact  with  reference  to  the 
intention  of  the  grantor.  Where  there 
is  no  fraud,  there  is  no  infirmity  in  the 
deed.  Every  case  depends  upon  its 
circumstances  and  is  to  be  carefully 
scrutinized.  But  the  vital  question  is 
always  the  good  faith  of  the  transac- 
tion. There  is  no  other  test."  Lloyd 
v.  Fulton,  91  U.  S.  479.  In  this  case"  it 
was  held  that  the  husband's  prior  in- 
debtedness, apart  from  insolvency,  &c, 
was  only  presumptive,  and  not  conclu- 
sive, proof  of  fraud,  and  that  the  pre- 
sumption was  open  to  explanation. 
And  see  Patrick  v.  Patrick,  77  111. 
555  ;  Booker  v.  Worrill,  55  Ga.  332  ; 
Kaufman  v.  Whitney,  50  Miss.  103. 
Yet  transfers  to  the  wife  of  an  insol- 
vent debtor,  and  even  purchases  by 
her,  are  justly  regarded  with  suspi- 
cion ;  and  consideration  from  her  sep- 
arate estate  must  be  established  by 
affirmative  proof,  especially  as  to  his  ex- 
isting creditors.  Seitz  v.  Mitchell,  94 
U.  S.  580;  Kehr.  v.  Smith,  20  Wall. 
31  ;  101  Mo.  162;  88  Ala.  382;  82  Ga. 
428  ;  93  Ala.  70. 

As  to  a  settlement  in  favor  of  minor 
children,  &c.,  see  Schouler,  Hus.  & 
Wife,  §  378. 

1  Moore  v.  Page,  111  U.  S.  117. 

2  Lord  Hardwicke,  in  Ambl.  121. 
See,  further,  Macq.  Hus.  &  Wife,  277; 
3  Vern.  220;  Ward  v.  Shallet.  2  Ves. 
Sen.  17  ;  Lavender  v.  Blackstone,  2  Lev. 
147;  Arundell  V.  Phipps,  10  Ves.  140. 

289 


188 


THE   DOMESTIC   RELATIONS. 


[PART   II. 


gift  to  the  wife  in  English  chancery.1  So  voluntary  settlements 
may  become  valid  by  matter  ex  post  facto.2  If  the  property 
was  the  wife's  separate  property,  and  so  consistently  treated, 
the  husband's  creditors,  of  course,  caunot  reach  it.3 

In  this  country,  as  also  in  England,  a  voluntary  settlement 
by  a  husband  upon  his  wife  may  become  valid  by  matter  sub- 
sequently arising.4  The  rule  is  general  that,  where  any  mar- 
riage settlement  is  for  a  valuable  consideration,  it  cannot  be 
avoided  as  fraudulent  upon  creditors,  unless  both  husband  and 
wife  were  cognizant  of  the  fraud ;  her  position  here  being  the 
usual  one  of  bona  fide  purchaser  for  value.5  And  in  numerous 
instances  the  equity  courts  of  various  States  have  sustained  a 
postnuptial  gift  or  transaction  in  the  wife's  favor  and  against 
the  husband's  creditors,  on  the  ground  that  a  valuable  considera- 
tion was  interposed.6     The  issue  of  bona  fide  or  colorable  and 


1  Peachey,  Mar.  Settl.  233,  238; 
Butterfield  v.  Heath,  15  Beav.  414; 
Bayspoole  v.  Collins,  L.  R.  6  Ch.  228  ; 
Ex"  pane  Fox,  L.  R,  1  Ch.  D.  302  ; 
Schouler,  Hus.  &  Wife,  §  381. 

2  Peachey,  Mar.  Settl.  236  ;  1  Sid. 
133  ;  Brown  v.  Carter,  5  Ves.  877. 

8  Cs.  8,  9  ;  55  Vt.  362.  The  mod- 
ern presumption  often  favored  is  that 
the  wife's  money  remains  her  own  after 
her  husband  has  taken  it  into  his  pos- 
session, and  that  she  lias  not  given  it  to 
him.  Hileman  v.  Hileman,  85  Ind.  1. 
Hia  mere  receipt  of  it  is  but  slight,  if 
any,  evidence  of  a  gift,  at  all  events. 
McNally  v.  Weld,  30  Minn.  209. 

4  4  Kent,  Com.  463;  Sterry  v.  Ar- 
den,  1  Johns.  Ch.  261  ;  Huston  v.  Can- 
trill,  11  Leigh,  136. 

■  Magniac  v.  Thompson,  7  Pet.  348; 
4  Kent,  Com.  463.  The  connection  be- 
tween  prior  and  subsequent,  so  as  to 
Bustain  the  consideration,  should  he 
shown.  Cheatham  v.  I  less,  2  Tenn. 
Ch.  763. 

8  As  where  the  husband  has  trans- 
ferred property  to  his  wife  in  consider- 
ation of  payment  from  her  separate 
Simmons  v,  McElwain,  26 
Barb.  120;  Bullard  v,  Briggs,  7  Pick. 
Eli  ad     v.    Bragg,    I    Head,  511. 

290 


And  see  Teller  v.  Bishop,  8  Minn.  226; 
Butterfield  v.  Stanton,  44  Miss.  15; 
Randall  v.  Lunt,  51  Me.  246  ;  Reich  v. 
Reich,  26  Minn.  97;  16  N.  Y.  Snpr. 
397.  And  where  he  conveys  what  her 
equity  entitles  her  to  claim.  Poindex- 
ter  v.  Jeffries,  15  Gratt.  363.  As 
where  he  acquired  real  estate  in  his  own 
name  out  of  the  use  of  her  separate 
property,  and  merely  transfers  legal 
title  to  the  equitable  owner.  Schreyer 
v.  Scott,  134  U.  S.  405.  And  where  he 
has  appropriated  a  like  amount  of  his 
wife's  property  without  her  consent. 
Wiley  v.  Gray,  36  Miss.  510.  So  where 
the  wife  pays  her  husband's  debts  from 
her  separate  earnings.  Dygert  p.  Rem- 
erschneider,  39  Barb.  417.  Or  releases 
her  dower  or  homestead.  Unger  v.  1  'rice, 
9  Md.  552;  Randall  v.  Randall,  37 
Mich.  563;  Randies  p.  Randies,  63  Ind. 
93;  Xalle  v.  Lively,  15  Fla.  130;  Payne 
v.  Hntcheson,  32 Gratt.  812;Garlick  v. 
Strong,  3  Paige,  440;  46  Ark.  542; 
Hale  p.  Plummer,  6  Ind.  121  ;  Andrews 
v.  Andrews,  28  Ala.  432.  But  see  85 
Wis.  214.  Or  lends  to  the  firm  of 
which  her  husband  is  a  member.  36 
\.  J,  Eq.  380.  <>r,  in  general,  releases 
her  interest  in  his  property.  Davis  v. 
Davis,    25    Gratt.    587.     Or    advances 


CHAP.  XIV.]  POSTNUPTIAL   SETTLEMENTS. 


§189 


fraudulent  consideration  becomes  in  such  cases  a  question  of 
fact  to  be  decided  upon  the  evidence.1 

§  188  a.  Same  Subject ;  Settlement  by  Wife  upon  Husband, 
&c.  —  Under  the  scope  and  policy  of  modern  legislation,  the 
relative  position  of  spouses  may  be  found  reversed  in  respect  of 
postnuptial  settlements ;  and  where  a  wife  conveys  voluntarily 
to  her  husband  for  his  benefit  or  that  of  his  creditors,  the  trans- 
fer may  sometimes  be  impeached,  if  fraudulent,  as  to  her  own 
creditors.2 

§  189.  Postnuptial  Settlements  as  between  the  Spouses.  — 
The  effect  of  a  postnuptial  settlement,  as  between  the  parties 
themselves,  and  independently  of  the  rights  of  creditors  and 


money  to  the  husband  to  buy  land,  even 
though  it  be  conditioned  upon  paying 
and  securing  the  money  to  her  children. 
Goff  v.  Rogers,  71  Ind.  459.  Or  where 
the  husband  is  indebted  to  her  for  rents 
collected  from  her  separate  real  estate. 
Barker  v.  Morrill,  55  Ga.  332  ;  Kauf- 
man v.  Whitney,  50  Miss.  103.  Or 
upon  any  debt  due  her.  French  v.  Mot- 
ley, 63  Me.  326 ;  Brigham  v.  Fawcett, 
42  Mich.  542;  Lahr's  Appeal,  90  Penn. 
St.  507;  91  Mich.  475;  81  Wis.  151. 
Or  a  claim,  generally,  which  grows  out 
of  the  husband's  appropriation  of  his 
wife's  separate  estate,  if  founded  on  an 
agreement  to  refund.  Odend'hal  v. 
Devlin,  48  Md.  439.  See  also  Johnston 
v.  Gill,  27  Gratt.  587 ;  Thompson  v. 
Feagin,  60  Ga.  82;  Bedell's  Appeal,  87 
Penn.  St.  510.  But  not  a  claim  for  the 
husband's  mere  appropriation,  without 
any  such  agreement  to  refund.  Clark 
v.  Rosenkrans,  31  N.  J.  Eq.  665.  See 
also  Rose  v.  Brown,  11  W.  Va.  122. 
And  see  Schouler,  Hus  &  Wife,  §  380; 
76  Va.  758  ;  106  111.  36.  In  some  late 
cases  the  wife  appears  to  be  treated  as 
a  preferred  and  privileged  creditor 
rather  than  bona  fide  purchaser  for 
value.  40  Kan.  5 ;  Payne  v.  Wilson, 
76  Iowa,  377;  48  N.  J.  Eq.  615;  124 
Ind.  412.  In  New  York  a  husband  may 
mortgage  his  farm  stock  to  his  wife, 
and  vest  in  her  a  complete  title  when 
she  buys  in   at  the  mortgage  sale  like 


any  other  mortgagor.  115  N.  Y.  122. 
To  recognize  her  individual  possession 
of  the  wife's  premises  on  which  both 
live,  becomes  practically  difficult,  espe- 
cially if  the  land  is  hers  by  a  result- 
ing trust;  but  the  courts  recognize 
such  possession.  lb.  ;  160  Penn.  St.  172. 
Whether  the  husband  now  has  an  insur- 
able interest  in  his  wife's  laud,  see  77 
Wis.  4 ;  81  Me.  373. 

But  where  the  consideration  ad- 
vanced by  the  wife  is  inadequate, 
equity  will  never  sustain  the  settle- 
ment to  the  injury  of  creditors  furthe/ 
than  to  secure  the  repayment  thereof, 
and  not  always  even  to  this  extent ; 
especially  if  she  be  privy,  with  her  hus- 
band, to  a  fraud  upon  others.  Hersch- 
feldt  v.  George,  6  Mich.  456 ;  Skillman 
v.  Skillman,  2  Beasl.  403  ;  Farmers' 
Bank  v.  Long,  7  Bush,  337 ;  Den  v.  York, 
13  Ired.  206  ;  Pusey  v.  Harper,  27  Penn. 
St.  469  ;  2  Kent,  Com.  174;  William  & 
Mary  College  v.  Powell,  12  Gratt.  372; 
supra,  c.  12  ;  Coates  v.  Gerlach,  44  Penn. 
St.  43.  But  though  the  price  be  inad- 
equate, a  gift  may  have  been  intended. 
102  Penn.  St.  59.  See  other  relative 
points,  Schouler,  Hus.  &  Wife,  §§  380, 
381. 

1  85  Wis.  214;  Steckman  v.  Schell, 
130  Penn.  St.  1  ;  Miller  v.  Hanley,  94 
Mich.  253. 

2  Washburn  v.  Hammond,  151  Mass, 
132. 

291 


§  189  THE   DOMESTIC    RELATIONS.  [PART   II. 

purchasers,  claims  our  further  attention  for  this  chapter.  Al- 
though a  direct  gift  of  property  by  the  husband  to  the  wife  is 
void  at  law,  it  will  be  sustained  in  equity,  so  far  as  they  are 
concerned  and  heirs  and  persoual  representatives  and  assigns. 
In  general,  to  constitute  a  voluntary  gift  between  parties,  it 
must  be  complete,  or  courts  of  equity  will  not  enforce  it ;  and 
not  only  must  the  intention  to  give  clearly  appear,  but  that 
intention  must  have  been  executed.1  But  the  rule  is  more 
favorable  as  to  a  cestui  que  trust  claiming  against  his  trustee;2 
and  it  is  thus  perceived  why,  on  general  principles,  the  inter- 
vention of  a  trustee  is  preferable  to  support  such  a  settlement. 
All  voluntary  conveyances,  though  void  against  creditors  and 
purchasers  for  value,  are  good  against  the  grantor  and  those 
claiming  under  him.3 

A  voluntary  promise  does  not  constitute  a  perfect  gift.  Nor 
is  a  voluntary  assignment,  unaccompanied  by  other  acts,  more 
effectual  to  confer  a  title  on  the  donee  than  a  mere  agreement, 
as  it  lias  been  repeatedly  held  in  equity.4  But  there  is  some 
difficulty  in  reconciling  the  authorities  on  this  latter  subject.5 

It  has  been  repeatedly  held,  in  chancery  courts  of  the  United 
States,  that  gifts  of  personal  property  or  voluntary  conveyances 
of  real  estate  from  husband  to  wife  are,  as  between  themselves, 
valid,  and  such  is  now  the  rule  in  most,  but  not  all,  of  the 
States ;  the  married  women's  acts  in  some  jurisdictions  creating 
a  legal  estate  in  the  wife  under  such  circumstances.  The  evi- 
dence of  intention  should  be  clear  and  distinct  in  all  such  cases.6 

1  Cotteen  v.  Missing,  1  Madd.  176;  Schouler,  Hus.  &  Wife,  §  384  ;  Fox  v. 
Kekewich  i\  Manning,  1  De  G.  M.  &  G.  Hawks,  L.  R.  13  Ch.  D.  822.  Statutes 
188.  sometimes  limit  the  amount  of  property 

2  Ellison  v.  Ellison,  6  Ves.  662;  which  a  husband  may  give  the  wife, 
Peachey,  Mar.  Settl,  245,  246 ;  Meek  v.  especially  as  against  his  creditors.  158 
Kettlewell,  l    Hare,  470;  Kekewich   v.  Mass  .342. 

Manning,  1   !>••  G.  M  &  G.  1!>2;  Beech  fi  Borst  v.  Spelman,  4  Comst.  284; 

v.  Keep    18  Beav.  289.  Coates  ».  Gerlach,  44  Penn.  St.  43 ;  Jen- 

'■'   Hill   v.   Cureton,  2  Myl.  &  K.  510;  nings  i\  Davis.  31  Conn.  134;  George 

I  1,'iishain,  17  o.  B.724.  v.  Spencer,  2   Md.  Ch.  353;  Reynolds 

'  Edwards  v.  Jones,  1  M.  &  Cr  226;  v.    Lansford,    16    Tex.    286;    Hunt   r. 

Holloway  v.  Headington,  B  Sim.  324  Johnson,  44  N.  Y.  27;  Sims  v.  Kickets, 

Bridgi     -     Bridge,    16   Beav.  35   Ind.   181 ;  Kitchen   v.   Bedford,  13 

321  j    McFaddyn   v.  Jenl    >>      I    Hare,  Wall.  418 ;  Campbell  t>.  Galbreath,  12 

162;    Peachey,    Mar,   Settl,   247,  248;  Bush.  459. 
Penfold   v.  Mould,    I.    R.   4  Eq.  562; 

292 


CHAP.  XIV.]  POSTNUPTIAL   SETTLEMENTS. 


§189 


There  should  be  a  clear  irrevocable  gift  to  a  trustee  for  the  wife, 
or  some  positive  act  by  the  husband,  by  which  he  divests  him- 
self of  the  property,  and  engages  to  hold  it  for  the  wife's  separate 
use,1  or  allows  the  wife  such  personal  control  of  it  by  his  delivery 


1  But  see  Towle  v.  Towle,  114  Mass. 
167. 

It  would  appear  to  be  the  rule  of 
some  States,  that  the  gifts  of  a  husband 
require  less  proof  than  the  gifts  of  third 
persous.  Dealing  v.  Williams,  26 
Conn.  2:26.  In  some  States,  however, 
the  wife  is  put  upon  strict  proof  as  to 
all  implied  gifts.  Gannard  v.  Kslava, 
20  Ala.  733;  Paschall  v.  Hall,  5  Jones 
Eq.  108;  Hollifield  v.  Wilkinson,  54 
Ala.  275.  The  precise  extent  to  which 
the  rule  of  a  gift  without  a  trustee  will 
be  enforced  depends  greatly  upon  the 
liberality  of  the  married  women's  legis- 
lation in  any  particular  State.  See 
Schouler,  Hus.  &  Wife,  §  385 ;  Under- 
bill v.  Morgan,  33  Conn.  105  ;  Browu  v. 
Brown,  23  Barb.  565 ;  Jennings  v. 
Davis,  31  Coun.  134  ;  Wilder  v.  Aldrich, 
2  R.  I.  518.  But  it  is  said  that  a  man 
cannot  denude  himself  of  his  marital 
rights  in  property  which  the  law  vests 
in  him  by  simply  declaring  that  it  be- 
longs to  his  wife.  Wade  v.  Cantrell, 
1  Head,  346.  For  the  principles  appli- 
cable to  such  gifts,  see  2  Schouler,  Pers. 
Prop.  Part  V.  c.  2.  Thus  the  promis- 
sory note  of  a  creditor  or  other  third 
party  may  be  legally  transferred  by  the 
husband  to  his  wife  under  some  of  the 
married  women's  acts ;  and  indepen- 
dently of  such  statutes  on  equitable 
grounds.  His  voluntary  settlement  of 
choses  or  incorporeal  personalty  upou 
her  with  delivery  is  good,  prima  facie  ; 
and  this  may  include  an  assignment  of 
a  claim  due  him.  The  husband  may 
make  a  gift  to  his  wife  if  depositing  in 
some  savings-bank  on  his  wife's  sepa- 
rate account,  by  his  acts  binding  the 
bank  to  account  to  her.  Leasehold 
property  may  be  assigned  to  the  wife 
by  way  of  gift.  Where  the  husband 
gives  corporeal  property  there  should 
be  some   visible   change  of   possession 


manifested ;  and  in  gifts,  as  of  furni- 
ture, of  that  which  remains  in  the  com- 
mon dwelling-house,  there  may  be 
difficulty  in  establishing  a  transfer. 
The  wife  may  be  the  grantor,  under 
due  statutory  formalities,  of  real  estate 
from  her  husband,  or  of  real  and  per- 
sonal property  combined.  Bents  and 
profits  may  be  secured  to  her  exclusive 
beneficial  use.  But  to  prove  the  exe- 
cuted gift,  so  as  to  establish  a  bona  Jide 
transfer  against  the  husband's  credi- 
tors, involves,  of  course,  the  greater 
difficulty.  See  Schouler,  Hus.  &  Wife, 
§  386.  Oral  gifts  of  land  or  its  profits 
are  not  favored,  for  they  are  opposed 
to  the  statute  of  frauds.  Williams  v. 
Walker,  9  Q.  B.  I).  576  ;  Greenman 
v.  Greenman,  107  111.  404;  138  Mass. 
540  ;  6  Lea,  240.  See  Cade  v.  Davis, 
96  N.  C.  139.  But  gifts  of  the  wife's 
earnings  (if  still  the  husband's),  or  of 
any  personal  property  of  the  husband, 
are  favored  so  long  as  creditors  be  not 
prejudiced.  Fisher  v.  Williams,  56  Vt. 
586;  143  111.  719;  Cummings  v.  Fried- 
man, 65  Wis.  183 ;  Armitage  v.  Mace, 
96  N.  Y.  538.  And  such  gifts  of  per- 
sonalty may  be  by  parol.  85  Mo.  580 ; 
113  N.  C.  186. 

A  husband  may  make  a  valid  gift 
causa  mortis  to  his  wife  upon  the  usual 
conditions.  Marshall  v.  Jaquith,  134 
Mass.  138.  As  to  that  of  a  wife  to  her 
husband,  see  92  Ky.  304  ;  81  Me.  231. 
A  husband,  under  modern  acts,  may 
make  valid  transfer  of  a  judgment  to 
his  wife.  Beese  v.  Reese,  157  Penn.  St. 
200.  Or  give  to  her  his  interest  as  pur- 
chaser in  a  contract  for  selling  land. 
Fruhauf  v.  Bendheim,  127  N.  Y.  587. 
Even  prior  to  such  legislation  a  hus- 
band might  by  his  uniform  course  of 
conduct  allow  the  wife's  antenuptial 
personal  property  to  be  for  her  sole  and 
separate   use,  as  between  himself  and 

293 


§190 


THE   DOMESTIC    RELATIONS. 


[PART   II. 


as  modern  policy  may  permit.  Having  executed  such  a  gift, 
he  cannot  avoid  it  afterwards  for  fraud  on  his  creditors,  as 
they  themselves  might  have  done.1 

§190.  The  Same  Subject.  —  But  the  circumstances  under 
which  the  husband's  transfer  is  made  are  always  material. 
Thus  a  husband  might  have  placed  his  earnings  or  property 
in  his  wife's  hands  for  safe-keeping,  and  not  as  a  gift  to  her, 
in  which  case  title  to  the  fund  should  be  respected  accordingly 
as  between  them ;  or  it  might  upon  due  proof  be  regarded,  per- 
haps, as  bestowed  for  their  joint  benefit  or  that  of  the  whole 
family.  Or  the  understanding  might  be  that  the  transaction 
was  to  stand  upon  mutual  consideration  or  by  way  of  security.2 
A  gift  of  what  modern  policy  inclines  to  treat  as  the  wife's  own 
property,  but  which  the  law  of  coverture  gave  to  the  husband 
(ornaments  and  apparel,  for  instance),  ought  to  be  more  favorably 
regarded  than  a  gift  of  what  clearly  belongs  to  the  husband  in 
his  own  right. 

"While  instances  of  gifts  or  voluntary  conveyances  from  hus- 
band to  wife  are  most  commonly  considered,  gifts  from  wife  to 
husband  are  by  no  means  rare.  But  in  the  latter  instance 
fraud  or  undue  influence  may  be  reasonably  suspected ;  and 
transactions  of  this  sort  are  scrutinized  by  the  courts  with  great 
care.3     A  wife  may  legally  give  her  property  to  her  husband, 


her,  without  a  trustee's  intervention. 
101  Mo.  597.  He  might,  after  reducing 
into  possession,  invest  the  fund  so  that 
it  should  belong  to  her  alone.  103  N.  C. 
194  ;  104  N.  C.  197. 

lint  a  gift  from  a  husband  to  his 
wife  "f  his  real  and  personal  property 
which  is  extravagant  and  exhaustive  of 
his  estate,  or  where  the  wife  is  shown 
to  I"-  of  grossly  immoral  character,  is 
not  to  be  protected  in  equity.  Warlick 
/■.  White,  86  N.  ('.  139.  Nor  property 
of   a    husband    which    tin-    wife    invests 

without  his  consent  at  all.  106  Penn, 
X<>r  is  a  s'-t  lenient  bel  ween 
husband  and  wife  for  the  benefit  of 
some  third  person  to  whom  the  hus- 
band  i-  under  no  legal  or  moral  obli- 
favorably.  I'ope  v. 
Bhanklin,  79  Kv.  230. 

294 


1  Knight  i\  Glasscock,  51  Ark.  390. 

2  Marshall  v.  Crutwell,  L.  R.  20  Eq. 
328;  Adlard  r.  Adlard,  65  111.  212; 
Edgerly  v.  Edgerly,  112  Mass.  175; 
Gram  v.  Shipman,  45  Conn.  572;  Lin- 
ker v.  Linker,  32  N.  J.  Eq.  174.  See, 
further,  Schouler,  Hus  &  Wife,  §  388. 
The  husband's  gift  may  be  qualified 
instead  of  absolute,  as  in  other  in- 
stances of  gift.  Jones  v.  Clifton,  101 
U.S.  225. 

8  Cruger  v.  Douglas,  4  Edw.  Ch. 
433;  Nedby  v.  Nedby,  ll  E.  L.  &  Eq. 
106  ;  Re  Jones,  6  Hiss.  68  ;  Converse  v. 
('(inverse,  9  Rich.  Eq.  535;  Stiles  v. 
Stiles,  14  Mich.  72;  Mollis  v.  Francois, 
5  Tex.  195;  Wales  v.  Newbould,  9 
Mich.  45;  82  Ga.  329;  l"".  111.  482. 
As  to  gifts  and  loans  of  the  wife's  sep- 
arate property  t"  her  husband,  including 


CHAP.  XIV.]  POSTNUPTIAL   SETTLEMENTS. 


190 


but  such  a  gift  of  her  capital  ought  uever  to  be  presumed.  Before 
the  wife's  separate  use  was  established  in  chancery,  little  or  no 
occasion  could  arise  for  the  wife  to  bestow  her  personal  property 
upon  her  husband,  for  the  law  sufficiently  bestowed  it  without 
her  aid. 

If  husband  and  wife  may  transfer  property  to  one  another 
without  consideration,  still  more  may  they  do  so  where  the 
consideration  is  valuable.  All  such  provisions  for  valuable  or 
meritorious  consideration,  even  if  made  without  the  intervention 
of  a  trustee,  may,  though  void  in  law  (independently  of  suitable 
married  women's  acts),  be  enforced  in  equity  if  fairly  made 
between  the  parties,  and  with  no  fraudulent  intent  upon  others 
concerned ; 1  a  rule  which,  with  particular  force,  sustains  an 
indebted  husband's  provision  in  his  wife's  favor,  wholly  or 
partially  executed.2 

The  common-law  requirement  that  trustees  shall  intervene  in 
conveyances  or  transfers  between  husband  and  wife  no  longer 


mortgages,  see  also  supra,  §  155.  Gifts 
of  profits,  income,  aud  surplus,  to  the 
husband,  where  he  long  manages  his 
wife's  separate  property,  are  thus  con- 
sidered. See  cs.  10,  11;  McLure  v. 
Lancaster,  24  S.  C.  273.  If  children 
are  injured  by  such  gift,  all  the  more 
scrutiny  should  be  required.  73  Md. 
386. 

1  See  supra,  §  188.  And  see  Crouse 
v.  Morse,  49  Iowa,  382  ;  6  Col.  543. 

2  The  husband's  note  or  bond  to 
pay  money  in  consideration  that  his 
wife  would  live  with  him  is  not  a  good 
consideration.  Roberts  o.  Frishy,  38 
Tex.  219;  Ximines  v.  Smith,  39  'lex. 
49.  Nor  prior  advances  to  the  wife, 
disconnected  with  the  settlement,  aud 
made  without  expectation  of  repay- 
ment. Perkins  v.  Perkins,  1  Tenn.  Ch. 
537.  But  where  the  wife  advances 
money  to  her  husband  as  his  creditor, 
or  the  latter  is  indebted  to  her  upon 
any  valid  consideration,  a  fair  convey- 
ance or  transfer  may  be  made  to  adjust 
or  secure  such  liability.  Kesner  /•. 
Trigg,  98  U.  S.  50;  Clough  v.  Russell, 
55  N.  H.  279;   Sims  r.   Pickets,  .'S5  [nd. 


181 ;  Schouler,  Hus.  &  Wife,  §  391, 
and  cases  cited.  As  to  the  considera- 
tion of  paying  rent  for  occupying  the 
wife's  premises,  see  40  Minn.  1.  Re- 
leases of  dower  in  husband's  lands  mav 
furnish  consideration.  Sykes  v.  Chad- 
wick,  18  Wall.  141  (a  statute  case); 
§  188;  Dakin  v.  Dakin,  97  Mich.  284. 

As  to  transfers  out  of  all  proportion 
to  the  consideration,  and  apparently 
fraudulent,  see  18  Hun,  472  ;  Warren 
v.  Ranney,  50  Vt.  653.  And  for  con- 
tracts of  this  kind,  specifically  enforced, 
see  Livingston  v.  Livingston,  2  Johns. 
Ch.  537.  There  must  be  no  extortion 
by  the  husband.     39  N.  J.  Eq.  211. 

Equity  will  relieve  against  any  un- 
just advantage  obtained  by  one  spouse 
over  the  other  in  their  confidential 
relations  deceitfully  or  oppressively,  by 
way  of  postnuptial  gift.     15  Col.  478. 

That  the  wife  will  support  him 
during  his  life  is  not  a  valid  considera- 
tion for  the  bus!  and  in  his  settlement 
upon  her.  119  Ind.  138.  But  a  wife's 
gift  to  her  husband  does  not  imply  a 
condition  that  he  must  remain  chaste. 
153  Mass.  17. 

295 


§  191  THE   DOMESTIC   RELATIONS.  [PART  II. 

prevails  to  any  great  extent,  in  England  or  the  United  States, 
as  a  doctrine  of  equity.1  But  trustees,  or  third  persons  by  way 
of  a  conduit  of  title,  are  always  desirable,  as  affording  better  pre- 
sumptive assurance  of  legal  intention  and  good  faith ;  and  in 
some  States  it  is  still  a  rule  that  the  husband  and  wife  can  only 
contract  with  one  another  through  the  intervention  of  third 
persons,2  and  that  they  cannot  at  law  convey  directly  to  one 
another. 

§  191.  General  Transactions  between  Husband  and  Wife. — 
In  general,  wherever  a  contract  is  just  and  reasonable  of  itself, 
and  would  be  good  at  law  when  made  with  trustees  for  the 
wife,  and  especially  if  for  good  and  meritorious  consideration, 
that  contract  will  be  sustained  in  equity,  when  made  between 
husband  and  wife  without  the  intervention  of  trustees,3  not- 
withstanding that  at  common  law  spouses  could  not  make  mu- 
tual contracts.4  But  as  to  a  wife,  her  contract  prejudicial  to 
her  interests  is  still  so  unfavorably  regarded,  that  a  statute 
must  be  explicit  in  order  to  bind  her  as  to  her  executory  con- 
tracts or  general  engagements  with  her  husband.5  The  married 
women's  acts,  as  yet,  seldom  permit  of  a  wife's  executory  con- 
tracts with  any  one   outside   her   separate   estate  or   separate 

1  Jones  v.  Clifton,  101  U.  S.  225;  hell,  2  Lea,  661;  Myers  v.  King,  42 
Baddeley  v.  Baddeley,  26  W.  R.  850;  Md.  65.  Such  is  still  the  legal  rule  in 
Thomas  v.   Harkness,   13  Bush,  23;  6     many  States.     117  N.  Y.  411. 

Col.  543;  15  Neb.  432;  102  Mo.  104.  *  A    mutual    agreement,    by   which 

2  McMullen  v.  McMullen,  10  Iowa,  the  wife  renounces  all  further  claim 
412;  Johnston  v.  Johnston,  1  Grant,  upon  the  husband  for  his  services,  or 
468;  Tike  v.  Baker,  53  111.  103;  Row-  necessary  support  for  herself,  and  stip- 
land  v.  Plnmmer,  50  Ala.  182;  119  ulates  that  she  will  contract  no  debts 
N.  V.  540;  si  Wis.  80;  §  192.  See  on  his  account,  while  the  husband  re- 
further,  Schouler,  Bus.  &  Wife,  §§  392,  nounces  all  claim  for  her  services  or 
393,  as  to  the  rectification  and  construe-  support,  affords  a  strong  illustration. 
lion  of  -mli  settlements.  This  might  not  avail  against  creditors, 

:!  Wallingsford  v.  Allen,  10  Pet.  583;  but  so  far  as  the  husband  and  his  heirs, 
2  Story,  Eq.  Juris.  §  1204;  Shinning  v.  and  in  fact  all  who  claim  under  him, 
Style,  3  I'.  Wins.  334;  Barron  r.  Bar-  are  concerned,  it  will  be  enforced.  Bar- 
ron, 24  Vt.  375  ;  Resor  v.  Kesor,  9  End.  ron  v.  Barron,  24  Vt.  375.  See  78  Mo. 
847;    Coatea  v.  Gerlach,  n   Penn.  St.  325. 

43;  Wright  >:  Wright,  16  Iowa,  496  ;  °  In  Maclin  v.  Haywood,  90  Tenn. 
Williams  v.  Manll,  20  Ala.  721  ;  Schaf-  195,  a  reciprocal  relinquishment  of  pre- 
fer -.  Renter,  37  Barb.  44;  Button  v.  visions  under  an  antenuptial  contract 
Dney,  8  Barr,  100;  Sims  v.  Rickets,  was  held  valid  as  to  the  husband,  but 
'<!•■>  tad.  181;  McCampbell  v.  McCamp-  void  as  to  the  wife 

296 


CHAP.  XIV.]  POSTNUPTIAL   SETTLEMENTS. 


192 


trade  or  dealings  with  third  parties.1  But  whatever  the  law 
will  compel  parties  to  do,  they  may  do  voluntarily  ;  and  this 
is  a  principle  applicable  to  transactions  as  between  husband 
and  wife,  so  far  as  equity  may  exercise  jurisdiction  in  the 
case.2 

§  192.  Transfer  of  Note  from  one  Spouse  to  the  Other  ;  De- 
posit ;  Conveyance.  — A  wife  is  not  legally  liable,  in  the  absence 
of  an  enabling  statute,  upon  a  promissory  note  made  by  her, 
payable  to  her  husband's  own  order,  and  by  him  indorsed  over.3 
And  the  husband's  note,  given  to  his  wife  and  transferred  by 
her,  is  also  void.4  But  he  may  give  his  note  to  a  third  person 
who  transfers  it  to  the  wife.5 

A  conveyance,  by  husband  and  wife,  of  land  belonging  to  the 
wife,  to  a  third  person,  and  a  conveyance  of  the  same  land  by 
such  third  person  to  the  husband,  vests  the  entire  title  in  the 
husband.6  But  a  conveyance  of  lands  by  the  wife  directly  to 
her  husband,  especially  if  it  be  voluntary,  and  prejudicial  to  her 
own  interests,  has  been  considered  ineffectual  and  void.  So  it 
is  the  older  rule  that  the  husband  cannot  convey  real  estate  to 
his  wife  directly,  and  without  the  intervention   of  a  trustee.7 


1  Bassett  v.  Bassett,  112  Mass.  99; 
Hogan  v.  Hogan,  89  111.  427  ;  Jeniie  v. 
Marble,  37  Mich.  319.  Some  statutes 
are  explicit  enough  for  such  purposes. 
Hamilton?;.  Hamilton,  89  111.  349.  And 
see  Schouler,  Hus.  &  Wife,  §  394,  and 
appendix. 

2  See  Campbell  v.  Galbreath,  12 
Bush,  459;  Kandall  v.  Randall,  37 
Mich.  563.  A  wife  may  now  own  a 
chattel  mortgage  on  her  husband's 
property  and  enforce  it  as  against  his 
attaching  creditors.  157  Mass.  228. 
Where  the  husband  conveys  upon  the 
wife's  promise  to  reconvey,  her  agree- 
ment to  reconvey  may  now  be  enforced 
in  equity  against  her.  62  Conn.  403. 
In  other  modern  cases  equity  compels 
the  wife's  property  to  fulfil  her  express 
engagement  to  her  husband  on  consid- 
eration.    117  Ind.  94. 

3  Roby  v.  Phelon,  118  Mass.  541. 

4  Hoker  v.  Bog^s,  63  111.  161  ;  Mor- 
rison v.  Thistle,  67  Mo.  596 ;  Greer  v. 


Greer,  24  Kan.  101  ;  McCampbell  i\ 
McCampbell,  2  Lea,  661  ;  Ellsworth 
v.  Hopkins,  58  Vt.  705 ;  Jacobs  v.  Mil- 
ler, 50  Mich.  119;  Bertie  v.  Nunan,  92 
N.  Y.  152.  This  rule  is  now  changed 
in  many  States.  See  Schouler,  Hus.  & 
Wife,  §  396.  So  as  to  a  note  given  to  a 
wife  by  a  partnership  of  which  her  hus- 
band is  a  member.     Clark  v.  Patterson, 

158  Mass.  388.  As  to  the  enforcement 
of  a  husband's  note  given  upon  good 
consideration  to  the  wife,  see  52  Ark. 
126.  A  fire-insurance  policy  may  be 
assigned  directly  by  husband  to  wife. 

159  Mass.  118. 

5  155  Mass.  52. 

B  Merriam  v.  Harsen,  4  Edw.  Ch.  70  ; 
Durant  v.  Ritchie,  4  Mason,  45  ;  Garvin 
v.  Ingram,  10  Rich.  Eq.  130  ;  Bowen  v. 
Sebree,  2  Bush,  112. 

7  Voorhees  v.  Presbyterian  Church, 
17  Barb.  103;  Ransom  v.  Ransom,  30 
Mich.  328;  107  Mo.  58. 

297 


193 


THE    DOMESTIC    RELATIONS. 


[PART   II. 


But  the  husband  may  make  a  valid  legal  conveyance  to  his 
wife  through  the  medium  of  a  third  person.1 

The  reason  of  this  rule  was  the  legal  unity  of  husband  and 
wife  at  the  common  law  ;  while  the  statutes  of  uses  furnished  a 
mode  of  conveyance  through  trustees.2  A  direct  deed  from  one 
to  the  other  was  usually  void  at  law,  nor  would  equity  uphold 
it  without  good  consideration  shown. 

§  193.  Conveyances  or  Transfers  to  Husband  and  Wife; 
Effect.  —  It  may  here  be  added  that,  at  the  common  law,  a 
conveyance  of  land  to  husband  and  wife  and  their  heirs  vests 
the  entirety  in  each  of  them ;  and  upon  the  death  of  one  the 
survivor  takes  the  whole  estate,  discharged  of  the  other's  debts.3 
Neither  can  convey  or  encumber  the  estate  during  marriage 
without  the  assent  of  the  other,  nor  subject  it  to  creditors.4 
The  estate  of  entirety  may  be  conveyed  in  fee  or  encumbered 
by  the  joint  deed  of  husband  and  wife.5  And  in  some  States 
legislation  has  abrogated  this  common-law  doctrine  of  entirety 
altogether.6 


1  Schouler,  Hus.  &  Wife,  §  397. 
Under  some  late  local  acts  a  wife  may 
convey  directly  to  her  husband,  or  the 
husband  to  the  wife.  lb.  Under  mod- 
ern statutes  and  policy,  a  direct  deed  is 
good  from  husband  to  wife  if  bona  fide 
made.  Sipley  v.  \V;iss,  v.)  X.  J.  Eq.  4G3. 
Or  from  wife  to  husband.  92  Tenn  391. 
Especially  if  for  valuable  or  meritorious 
consideration  ;  for  in  such  cases,  though 
void  at  law,  the  transfer  will  lie  upheld 
in  equity.  36  W.  Va.  11;  Dean  v. 
Metropolitan  R.,  119  N.  Y.  540.  See 
tan  '•.  Burnham,  59  Conn.  117, 
equity  reformed  a  deed  of  settle- 
ment. 
.      -  l  Washb.  Real  Prop.  279. 

:;  Wright   v.   Sadler,  20  N.  Y.  320; 
.    /■.   <  'ampliell,  9    15.   Monr.   5*7  ; 

fill-'. n  >■  Zimmerman,  12  Mo.  885; 
reck,  li'*  X.  5T.263  ;  92Tenn. 
707  Si  houler,  Hus.  &  Wife,  §  398, 
where  >:'i-  Bubject  is  considered  at 
length.  So,  under  a  deed  by  husband 
and  ■•  if<  to  a  son,  reserving  a  life  estate 
Co  i  b<  ley  hold  the  life  estate 

298 


by  entirety,  and  the  surviving  spouse 
becomes  sole  tenant  for  life.  Jones  v. 
Potter,  89  N.  C.  220.  See  72  Ala.  589 ; 
16  Lea,  448;  40  Kan.  442. 

4  Bruce  v.  Nicholson,  109  N.  C.  202; 
63  Vt.  505  ;  96  Mich.  182. 

5  McDuff  v.  Beauchamp,  50  Miss. 
531.  See  Insurance  Co.  v.  Nelson,  103 
U  S.  514.  See,  as  to  joint  tenants  by 
virtue  of  the  individual  right  of  each 
and  the  wife's  independent  conveyance, 
129  N.  Y.  17  ;  133  N.  Y.  308.  "  The 
husband  may  through  a  third  party 
convey  his  interest  in  an  estate  by 
the  entirety  to  his  wife.  154  Mass. 
537.     Cf.  118  Ind.  34;  120  Ind.  568. 

Where  a  conveyance  is  to  husband 
and  wife  as  tenants  by  the  entirety, 
their  mortgage  taken  for  the  purchase 
money  upon  selling  the  land  is  pre- 
sumed to  vest  in  them  a  like  tenancy. 
156  Penn.  St.  628.  The  rule  of  en- 
tirety is  now  disfavored  in  some  States, 
and  tenancy  in  common  is  presumed. 
43  Minn.  398. 

,;  And   thus  may  the  spouses  be  re- 


CHAP.  XIV.]  POSTNUPTIAL   SETTLEMENTS.  §  194 

Where  a  promissory  note,  too,  or  other  evidence  of  a  debt,  or 
personal  security,  or  a  certificate  of  stock,  is  made  payable  to  a 
husband  and  wife  jointly,  it  belongs  to  the  survivor,  and  may  be 
sued  upon  accordingly ;  but  not  if  the  facts  are  inconsistent  with 
that  presumption  of  joint-ownership  which  a  technical  expres- 
sion of  this  sort  would  afford ;  and  the  drift  of  modern  policy, 
we  may  add,  is  unfavorable  to  extending  to  personalty  this  rule 
of  survivorship,  applicable  originally  to  real  estate.1 

§  194.  Questions  of  Resulting  Trust  bet-ween  Husband  and 
Wife.  —  The  question  whether  a  resulting  trust  is  established 
in  certain  property  of  husband  or  wife  comes  up  constantly  in 
the  latest  American  cases,  with  the  extension  of  equity  juris- 
diction in  the  States  and  the  new  married  women's  legislation. 
Issues  of  this  sort  are  made  up  not  only  where  the  claim  is  that 
of  a  wife  against  her  husband,  or  of  a  husband  against  his  wife, 
but  in  controversies  between  either  one  and  the  creditors  of  the 
other.  The  decision  must  be  according  to  the  evidence  adduced, 
which  is  usually  oral,  deference  being  paid  to  the  property  sta- 
tus of  the  spouse  under  modern  legislation  and  to  the  usual 
presumptions  as  between  husband  and  wife;  but  the  ostensible 
title  afforded  by  instruments  of  title  or  security  standing  in  the 
name  of  the  one  is  thus  overthrown  by  proof  that  the  property 
actually  belonged  by  light  to  the  other.2  One  spouse  may  have 
intended  a  gift  to  the  other ;  or  on  the  other  hand  to  preserve  a 
pecuniary  interest  in  the  investment  to  the  extent  at  least  that 
his  or  her  independent  property  contributed  to  the  fund  ;  or  once 

gardedas  joint  tenants,  or  rather  tenants  of  husband  and  wife  does  not  give  the 

in  common.     Cooper  v.  Cooper,  76  111.  fund  to  the  wife  alone.     42  N.  J.  Eq. 

57;  Whittlesey  v.  Fuller,  11  Conn.  337  ;  352.     In  Phelps  v.   Simons,   159  Mass. 

Clark  v.  Clark,  5fi  N.  II.  105  ;  Meeker  415,  husband  and  wife  were  held  to  be 

v.  Wright,   76  N.  Y.   262 ;  Abshire  v-  owners  by  the  entirety  of  stock  taken 

State,  53  Ind.   64 ;  Sanford  v.  Sanford,  in   their   joint   names,  with  the  usual 

45  N.  Y.  723 ;  Johnson  v.  Lusk,  6  Cold,  constraint  upon  the  one  to  transfer  it 

113.     A   conveyance   to   husband    and  during     marriage    against    the    other, 

wife  may  by  its  tenor  give  a  fee  to  the  For  husband  and  wife  as  joint  lessees 

wife,  subject  to  the  husband's  life  es-  of  a  house,  see  85  Ga.  816.     As  joint 

tate.     75  Ind.  401.  contractors,  see  (1891),  1  Q.  B.  781. 

1  Wait  v.  Bovee,  35  Mich.  425.     As  3  See  Schouler,  Hus.  &  Wife.  §  400, 

to   joint   investments   by  husband  and  and  cases,  where  this  subject  is  further 

wife    and    their    joint    liabilities,    see  discussed.    And  see  lb.  §  401 . as  to  pur- 

Schouler,  Hus.  &  Wife.  §  400.     A  sav-  chases  of  one  another's  property, 
ings-bauk  deposit  iu   the   joint  names 

299 


§  194  a 


THE   DOMESTIC    RELATIONS. 


[PART    II. 


more  to  make  a  loan  and  not  a  gift ; 1  and  once  again  there  may 
have  been  some  collusive  arrangement  between  husband  and 
wife  in  the  transaction  to  defraud  or  hinder  creditor?  or  other 
third  parties.2 

Equity 3  in  recognizing  husband  and  wife  as  distinct  persons 
capable  of  contracting  with  one  another  and  holding  property 
adverse  to  one  another's  claims,  affords  the  relief  appropriate  to 
such  a  situation.  Where  either  one  is  false  to  the  other,  and 
fraudulently  or  through  coercion  procures  an  unjust  advantage, 
chancery  will  relieve  against  the  transaction,3  or  will  decline  to 
aid  a  misconducting  party. 

§  194  a.  Mutual  Right  to  Sue  under  Modern  Statutes.  —  It  is 
sometimes  a  question  under  our  latest  marital  legislation  whether 
the  wife  can  bring  an  action  at  law  in  damages  against  the  hus- 
band, or  the  husband  against  the  wife,  over  matters  touching 
their  marriage  relations,  especially  after  they  have  quarrelled 
and  separated.4  The  effect  of  modern  legislation,  while  clouding 
the  title  as  between  the  spouses,  is  certainly  to  enlarge  the  ex- 
clusive ownership  and  dominion  of  the  wife  over  her  own 
property.  Equity  or  a  divorce  or  ecclesiastical  tribunal  furnished 
formerly  the  only  recourse  for  a  wife  ;  but  equity  restrained  a 
husband  upon  the  wife's  petition  from  doing  wrongful  acts  con- 
cerning her  separate  property. 


1  See,  '-.  '/.,  among  late  cases,  54  Vt. 
36;  90  hid.  107;  63  Cal.  12;  98  111. 
544;  66  Ala.  55;  88  Mo.  229;  §  119; 
142  Penn.  St  .V.I  ;  144  111.  299  :  90  Cal. 
323  ;  Ziim  v.  Law,  32  W.  Va.  203  ;  128 
Ind.  48.  A  conveyance  expressly  to  a 
trustee  for  the  wife's  use  is  not  readily 
to  be  disputed  by  oral  proof.  112  .Mo. 
412;  tj  1  39. 

When-  claims  of  a  wife  upon  her 
husband  come  in  conflict  with  the  claims 
of  his  creditors,  the  transaction  out  of 
which  her  claims  arise  ought  to  he  scru- 
tinized with  great  care,  hecause  the 
marital  relation  ami  influence  afford 
opportunity  for  the  fabrication  of  such 
claims,     15  N  .1.  Eq.  779. 

-  105  N    I     301. 

I  6   Ind.  836;  Stone 
v.  Wood.  -:>  [11.  603  .  Tucker's  Appeal, 
300 


75  Penn.  St.  354;  Schouler,  Hus.  & 
Wife,  §§  389,  403;  Lomhard  v.  Morse, 
155  Mass.  136;  86  Ala.  357;  17  Ore. 
348;  15  Col.  478. 

4  This  new  phase  of  public  policy 
opens  tip  suggestions  not  favorahle  to 
conjugal  harmony.  See  the  removal  of 
such  barrier  asserted  in  73  Hun  (N.  Y.), 
386;  66  Hun,  386,  where  the  wife  had 
wrongfully  carried  off  the  husband's 
personal  property.  So,too,inHaigh1  v. 
McVeagh,  69  111.  624;  49  III.  App.  162. 
Replevin  is  allowed  the  wife  to  recover 
possession  of  personalty  violently  car- 
ried away  by  her  husband.  125  hid.  14. 
t  >r  criminal  proceedings  for  larceny. 
Beaslej  '■■  State  (1894),  Ind.  Or  eject- 
ment from  her  land.  181  Penn.  St.  J4. 
Sec  also  86  Ga,  773;  supra,  §  52. 


CHAP.  XV.]  HUSBAND   AS   SURVIVOR.  §  196 

§  195.  Insurance  upon  Husband's  Life. — Insurance  is  fre- 
quently effected  by  a  husband  on  his  own  life  for  the  separate 
benefit  of  his  wife;  a  provision  most  just  and  honorable,  if  not 
so  unreasonable  in  amount,  with  its  incidental  payment  of  pre- 
miums, as  to  defraud  one's  antecedent  creditors  ; :  and  local 
statutes  confirm  the  wife's  beneficial  interest  in  policies  thus 
taken  out.2  But  circumstances  may  arise  in  the  payment  of 
premiums  upon  a  life  policy  such  as  to  afford  a  just  priority 
to  creditors  out  of  the  fund.3 


CHAPTER   XV. 

DEATH     OF    THE    WIFE;     RIGHTS    AND     LIABILITIES    OF    THE 
SURVIVING   HUSBAND. 

§  196.  Husband's  Right  to  Administer.  —  On  the  death  of  the 
wife,  the  husband  becomes  entitled  to  administer  on  her  estate. 
The  court  having  jurisdiction  in  such  matters  must  issue  letters 
to  him,  and  to  him  alone,  unless  he  renounce  or  decline.  The 
foundation  of  this  claim  has  been  variously  stated  ;  by  some  it  is 
said  to  be  derived  from  the  statute  31  Edw.  III.,  on  the  ground 
of  the  husband's  being  "  the  next  and  most  lawful  friend  "  of  his 
wife ;  while  there  are  other  authorities  which  insist  that  the 
husband  is  entitled  at  common  law,  jure  mariti,  and  independ- 
ently of  the  statutes.  But  this  right,  however  founded,  is  now 
regarded  in  England  as  unquestionable,  and  is  expressly  con- 
firmed by  the  statute  29  Car.  II.  c.  3  (amendatory  of  statute 

1  Schouler,  Hus.  &  Wife,  §  404.  wife  thus  transfer  it.  75  Ga.  755  ;  122 
Statutes  affect  this  right  in  England  N.  Y.  337  (statute).  But  see  100  N.Y. 
(Act  45  &  46  Vict.  c.  75),  and  in  nearly  372.  And  see  85  N.  Y.  593. 
all  of  the  States.  lb.  appendix.  The  2  Pullis  v.  Robison,  73  Mo.  201. 
wife's  interest  cannot  be  revoked  by  the  8  An  endowment  policy  is  held  sub- 
party  thus  insured,  so  that  the  bene-  ject  to  claims  of  creditors  in  34  Neb. 
fit  may  be  assigned  to  himself  or  his  611.  And  see  Holmes  v.  Gilman,  138 
creditors.     59  N.  H.  13.     Nor  can  the  N.  Y.  369;  §  198,  notes. 

301 


§  196  THE    DOMESTIC    RELATIONS.  [PART   II. 

22  &  23  Car.  II.  c.  10),  which  enacts  that  the  statute  of  distri- 
butions "  shall  not  extend  to  the  estates  of  femes  covert  that 
shall  die  intestate,  but  that  their  husbands  may  demand  and 
have  administration  of  their  rights,  credits,  and  other  personal 
estates,  and  recover  and  enjoy  the  same  as  they  might  have 
done  before  the  making  of  the  said  act."  l  This  same  right  of 
the  husband  is  generally,  though  not  universally,  recognized  in 
this  country,  and  in  the  different  States  there  are  statutes 
which  regulate  the  subject  of  administration;  and  these  statutes 
are  usually  found  to  recognize  and  confirm  the  husband's  pre- 
ferred right  to  administer  upon  his  wife's  estate.2 

To  this  rule  some  exceptions  have  been  introduced,  however, 
in  later  years,  both  in  England  and  the  United  States,  owing 
chiefly  to  the  modern  facilities  for  separation  and  divorce,  and 
the  enlarged  capacity  given  to  the  wife  to  act  as  a,  feme  sole,  and 
to  dispose  of  her  own  property  acquired  during  that  condition 
of  things.3 

Since,  as  we  have  already  seen,  the  husband  takes  absolutely 
his  wife's  personal  cJioses  in  possession  at  the  common  law  by 
virtue  of  the  marriage,  and,  if  lie  be  the  survivor,  her  chattels 
real  likewise,  there  would  generally  appear  to  be  no  object 
gained  in  seeking  letters  of  administration  on  her  estate,  under 
the  coverture  doctrine,  unless  she  had  choses  in  action  unrecov- 
ered  at  the  time  of  her  death.  But  a  case  might  arise,  besides, 
where  he  had  a  just  claim  against  her  estate,  and  wished  to 
enforce  it  by  a  sale  of  her  real  estate  as  administrator.  Or  he 
might  intend  to  prosecute  a  suit.  Or  letters  of  administration 
might  be  desirable  for  the  purposes  of  creditors.     And  peculiar 


1  Wins  Ex'rs,  4th  Am.  ed.  366  ct  seq.  of  the  husband  over  the  wife's  unad- 

2  2  Kent,  Com.  135  ;  lb.  410.  ministered  property,  when  her  death  oc- 
'■'■  Tims,  in  :i  late  English  case,  where  enrred  during  a  state  of  separation  for 

a  married  woman  lived  separate  from  his  misconduct,   have   heen    sometimes 

her  husband,  after  having  obtained  an  denied.    Cooper  ?\   Maddox,  '2  Sneed, 

order    of     protection,    and     then    died,  135.     But  the  husband   is  not  deprived 

leaving  him  and  a  minor  son,  admin-  of  his  right  by  mere  separation  short 

istration  •■■            i  ited    to   a   guardian  of  divorce.    A  statute,  the  wife's  legal 

ed  by  the  Bon,  upon  proper  seen-  will,  or  his  own  express  agreement  must 

tity,  without  citing  the  father.     Goods  usnally  be  shown.     Schouler,   Exeeu- 

ison,    I.,    i;.   1    P.  &   D.  285.  tors,§99;  Kenyon  »\  Saunders  (1894), 

Ami  in  this  country  the  marital  rights  R.I. 

802 


CHAP.  XV.]  HUSBAND   AS   SURVIVOR.  §  197 

considerations  apply  sometimes,  as  we  shall  presently  see,  to 
what  we  term  the  wife's  separate  property,  even  after  her  death. 
Cases,  moreover,  in  these  days  are  found,  where  a  husband  is 
made  the  executor  under  his  wife's  will.1 

§  197.  The  Same  Subject;  Assets  for  Wife's  Debts.  —  There 
is  a  common-law  distinction  between  property  acquired  by  the 
husband  absolutely  by  virtue  of  marriage,  and  property  acquired 
in  his  representative  capacity  as  her  administrator  or  executor. 
The  former  is  his  own,  free  from  all  demands  of  his  wife's  cred- 
itors. But  the  latter  comes  to  him  only  by  way  of  distribution, 
after  payment  of  all  just  debts  against  his  wife's  estate.2  In 
the  case  of  an  antenuptial  debt,  he  who  married  the  woman 
indebted  became  responsible  under  qualifications ;  ceasing  to  be 
responsible,  however,  upon  his  wife's  decease.3  Debts  con- 
tracted by  the  wife  during  marriage  follow  a  somewhat  differ- 
ent rule  at  the  common  law ;  for  either  they  are  the  debts 
of  the  husband,  or  no  legal  debts  at  all ; 4  and  if  his  debts, 
he  must  be  held  responsible  in  his  personal,  and  not  a  fiduciary 
capacity. 

The  modern  change  of  policy  with  regard  to  a  wife's  debts, 
whereby  the  wife  may  hold  separate  property  upon  which  her 
separate  liabilities  should  be  fastened,  occasions  an  obvious  de- 
parture in  the  latest  decisions  and  statutes.  Hence  the  statute 
rule  now  introduced  into  many  States,  that  the  husband  shall  be 
held  liable  as  administrator  on  the  estate  of  his  wife  for  her 
debts,  only  to  the  extent  of  the  assets  thus  received  by  him,  but 

1  Martin  v.  Foster,  38  Ala.  088.  See  ministrator.  Lord  Chancellor  Talbot 
Schouler,  Hus.  &  Wife,  Part  VIII.  decided  that  from  the  latter  portion, 
c.  5.  after  it  had  been  recovered,  the  creditor 

2  A  notable  case  in  point  is  that  of  should  be  satisfied;  but  that  no  claim 
Heard  v.  Stamford,  where  a  single  could  be  enforced  against  the  former 
woman  contracted  a  debt  for  which  she  portion.  Heard  v.  Stamford,  Cas. 
gave  her  promissory  note  of  £50.  She  temp.  Talb.  173;  3  P.  Wms.  409; 
afterwards  married,  and  brought  to  her  Macq.  Hua.  &  Wife,  188.  And  see 
husband  a  fortune  of  £700.  On  her  Hetrick  v.  Hetrick,  13  Ind.  44;  Don- 
death  it  appeared  that  the  husband  nington  v.  Mitchell,  1  Green,  Ch.  243. 
had  acquired  a  portion  of  this  fortune  8  Supra,  §§  56,  57. 

during    coverture  ;    the    other    portion  4  See  Hill  v.  Goodrich,  46  N.  H.  41  ; 

was  still  outstanding  at  her  death  as  a  Bain  v.  Doran,  54  Penn.  St.  124;  supra 

chose  in  action,  and  could  only   be  re-  §  59. 
covered  by  the  late  husband  as  her  ad- 

303 


§  198  THE   DOMESTIC   RELATIONS.  [PART   II. 

so  that  her  separate  estate  shall  be  liable  for  debts  contracted 
upon  the  faith  of  it.1 

§  198.  Surviving  Husband's  Rights  in  Wife's  Personal  Property. 
—  We  have  seen  that  at  the  common  law,  and  conformably  to 
the  doctrine  of  coverture,  marriage  operates  as  a  gift  to  the  hus- 
band of  the  wife's  personal  property,  botli  principal  and  income, 
whether  acquired  by  her  before  or  during  the  marriage  state  ; 
but  with  this  qualification,  that,  so  far  as  choses  in  action  are 
concerned,  or  incorporeal  personalty,  he  must  reduce  to  posses- 
sion while  marriage  lasts,  in  order  to  make  the  property  abso- 
lutely his  own.2  Hence  choses  in  action  unrecovered  at  her  death 
belong,  technically  speaking,  to  her  estate.  The  wife's  earnings 
were  the  husband's ; 3  and  as  to  her  chattels  real,  if  he  survived 
her,  they  became  his  absolutely.4 

In  these  days  it  becomes  important  to  understand  how  far 
the  modern  creation  of  a  separate  estate  in  the  wife's  favor  may 
have  modified  this  doctrine  to  the  husband's  detriment.  The 
equitable  rule,  so  familiar  to  England,  has  been  that  the  sepa- 
rate use  ceases  with  the  marriage  state ;  so  that,  subject  to  the 
restrictions  of  a  trust  under  which  the  wife  might  have  acquired 
any  specific  separate  property,  or  her  possible  disposition  of  sep- 
arate property  during  her  lifetime  (no  clause  of  restraint  imped- 
ing her),  the  surviving  husband  became  entitled  to  whatever 
was  left,  under  the  rules  and  subject  to  the  limitations  of  the 
common  law.  That  is  to  say,  as  to  personal  property,  her  choses 
in  possession  vested  in  him  absolutely,  and  also  her  chattels  real, 
while  choses  in  action  might  be  recovered  for  his  benefit  in  due 
course  of  administration.5  The  United  States  rule  of  equity 
appears  to  have  treated  the  separate  estate  as  ceasing  upon  the 
wife's  death  with  similar  consequences.6  Generally  speaking, 
both  in  England  and  in  this  country,  the  fact  that  a  husband 
allows  his  wife  to  treat  and  deal  with,  as  her  own,  property 
acquired  by  her  independently  of  the  married  women's  acts,  is 


e  X.  V.  Rev.  Stat.  vol.  2,  p.  75  ;  8  fiohouler,  Hus.  &  Wife,  §  148. 

Bchouler,    Ilns     &    Wife,    appendix  ;         4  ll>.  §  164. 

ii  r.   Hadlock,  62  Conn,   L43j  83         5  Ih.  §   10fi.     Ami  as  (<>  real  estate 

<  .;>   :i 5.  sec  lb.  S  196,  and  post,  §  201. 
*  Schooler,  Hus.  &  Wife,  §  148.  «  Supra,  §  233. 

804 


CHAP.  XV.]  HUSBAND   AS   SURVIVOR.  §  108 

not  inconsistent  with  his  intention  to  assert  his  marital  rights  to 
it  if  he  survive ;  neither,  if  he  allows  her  to  dispose  of  the  in- 
come and  loan  it  on  promissory  notes  running  in  her  own  name, 
would  such  income  become  thereby  converted  into  her  separate 
estate.1  Moreover  the  married  women's  acts  themselves,  in  the 
absence  of  unequivocal  language,  do  not  change  the  common-law 
rule  with  reference  to  separate  personal  property  of  a  married 
woman,  not  disposed  of  in  her  life  nor  by  will ;  but  it  goes  to 
her  surviving  husband  by  virtue  of  his  marital  rights  in  the 
same  manner  as  under  the  old  law.2 

By  the  English  statutes  of  distribution,  therefore  (and  per- 
haps by  the  common  law),  not  only  is  the  husband  entitled  to 
administer  upon  his  wife's  estate  in  preference  to  all  others, 
but,  subject  to  the  payment  of  such  debts  as  bind  him  upon 
surviving  her,  he  recovers  her  outstanding  personal  property 
to  his  own  use  and  enjoyment,  including  rights  vested  and  con-  . 
tingent,  and  funds  at  her  disposal  during  her  lifetime  or  held 
in  trust  for  her,  save  so  far  as  he  may  be  excluded  by  the  terms 
of  the  trust.  Even  if  he  does  not  take  out  letters  of  adminis- 
tration, he  is  equally  entitled  to  the  property.3  He  is  therefore 
said,  when  he  administers,  to  administer  for  his  own  benefit, 
being  the  party  in  interest  preferred  to  all  others,  so  far  as 
personal  estate  is  concerned.  And  since  husband  and  wife  are 
not,  properly  speaking,  next  of  kin  to  one  another,  the  title  the 
husband  thus  acquires  may  be  designated  as  a  title  jure  mariti 
under  the  statutes  of  distribution.4 

But  with  the  modern  recognition  of  separate  use,  an  exercise 
of  the  wife's  testamentary  appointment  or  will  may  be  found 

1  Ryder  v.  Hulse,  24  N.  Y.  372.  to  a  second  wife  or  keep  it  up  for  the 

2  Ransom  v.  Nichols,  22  N.  Y.  110;  benefit  of    his  own  estate.      Olmstead 
Wilkinson  v.  Wright,  6  B.  Monr.  576;  v.  Keyes,  85  N.  Y.  593.     See  §  195. 
Brown  v.  Brown,  6  Humph.  127.  As  to  collecting  a  note  held  by  his 

3  Clough  v.  Bond,  6  Jur.  50.  late  wife,  see   131   Mass.  457.     Where 

4  2  Bl.  Com.  515;  Watt  v.  Watt,  3  the  late  wife's  land  was  converted  into 
Ves.  246,  247 ;  2  Kent,  Com.  136 ;  personalty  under  judicial  direction  in 
Schouler,  Hus.  &  Wife,  §§  409,  414,  her  lifetime,  the  right  to  collect  the 
and  authorities  cited.  Where  a  hus-  fund  passes  to  the  husband  as  her  ad- 
hand  takes  a  policy  of  insurance  on  ministrator,  and  not  to  her  heirs.  5 
his  life  for  his  wife's  benefit,  her  pre-  Lea,  585.  See  also  Bartlett  v.  Bart- 
decease  causes  it  to  pass  to  him  as  her  lett,  137  Mass   156. 

chose  in  action,  and  he  may  assign  it 

20  305 


§199 


THE   DOMESTIC   RELATIONS. 


[PART   IL 


to  interfere  with  the  husband's  rights  both  as  surviving  admin- 
istrator and  distributee.  Furthermore,  the  principle  that  the 
husband  administers  exclusively  for  his  own  benefit  on  his  wife's 
estate  is  incompatible  with  the  legislation  of  some  States.  Tor 
in  this  country  the  modern  tendency  is  not  only  to  enlarge  the 
wife's  power  of  testamentary  disposition,  but  to  require  admin- 
istration to  be  taken  out  in  all  cases  where  a  married  woman 
with  a  separate  estate  dies  intestate ;  nor  is  the  surviving  hus- 
band in  all  the  States  absolutely  preferred  to  issue  and  other 
kindred  either  as  administrator  or  distributee.1 

§  199.  Husband's  Obligation  to  bury  "Wife  ;  Rights  Correspond- 
ing. —  Every  husband  is  bound,  at  the  common  law,  to  bury  his 
deceased  wife  in  a  suitable  manner;  that  is  to  say,  he  is  bound 
to  defray  all  necessary  funeral  expenses.  Even  when  a  wife 
dies  who  had  been  living  separate  from  her  husband,  it  is  held 
that  her  surviving  husband  must  provide  her  with  a  funeral  at 
a  reasonable  expense ;  and  if  he  neglects  to  do  so,  any  person 
who  voluntarily  employs  an  undertaker  for  that  purpose,  and 
pays  him  far  his  services,  is  entitled  to  recover  the  sum  thus 
expended  from  the  husband  in  an  action  at  law.2  So,  too 
where  the  wife  died  during  the  absence  of  her  husband  abroad, 
so  that  it  was  necessary  for  another  to  superintend  the  funeral.3 
And  it  is  held  that  even  an  infant  husband  may  contract  for 
the  interment  of  his  deceased  wife,  or  lawful  children,  so  as  to 


1   Holmes   v.   Holmes,    28  Vt.  765; 

Schooler,  Hus.  &  Wife,  §  409;  Cox  v. 

Morrow,  14  Ark.  603;  Nelson  v.  Goree, 

:J4  Ala.  505;    Baldwin    r.    Carter,    17 

Conu.   2ol  ;    Curry    v.    Fnlkinson,    14 

Ohio,  100;  Gill  v.  Woods,  81   111  64; 

i    v.    Breeding,    50    Iowa,    629; 

Woodman    v.    Woodman,    54     N.    II. 

As  to  the  wife's  will,  seepo.it,  §  203, 

A  dying  wife's  gift  causa  mortis 

of   furniture  is  good,  at  all   events  if 

the  husband  assented  at  tlie  time.     141 

Penn.  St.   1 1  i. 

Postnuptial     transactions    between 

ind  .-  l  1 1  <  1  wife  give  rise  to  delicate 

questions  in  the  courts  after  the  wife's 

death,  where  modern  ]<r.'K  t  i<<-  permits 

of   an   administration    in  conflict  with 

806 


the  surviving  husband's  interests.  See 
Schooler,  Hus.  &  Wife,  §  411,  and  cases 
cited;  Gill  o.  Woods,  81  111.  64;  Hns- 
ton  v.  Cone,  24  Ohio  St.  11;  Barrack 
v.  M'Culloch,  3  Kay  &  J.  110;  Her- 
rington  v.  Kobertson,  71  N.  Y.  280. 
An  antenuptial  settlement  properly 
worded  may  exclude  the  husband's 
right  both  to  administer  or  to  inherit; 
but  not  a  Bimple  settlement  for  the 
wife's  benefit.  Ward  v.  Thompson,  6 
Gill  &  J.  349;  Baine?'.  Hollister,  139 
Mass.  144;  Fowler  v.  Kell,  22  Miss. 
68  ;  12  B.  M  in.  391  ;  132  111.  443. 

2  Ambrose  v  Kenison,  4  E.  L.  &  Eq. 
361 ;  Bradsha  v.  Heard,  12  C.  B.  n.  s. 
:j44. 

8  Jenkins  v.  Tucker,  1  II.  Bl.  90. 


CHAP.  XV.] 


HUSBAND   AS   SURVIVOR. 


§  199 


be  bound  by  his  contract.  The  contract  will  have  validity, 
because  it  is  a  contract  for  the  burial  of  those  who  are  personal 
conjtiactce  with  him  by  reason  of  the  marriage,  and  as  such  it  is 
to  be  regarded  as  a  contract  for  his  own  personal  benefit.1 

These  points  were  decided  in  England,  and  it  is  believed  that 
a  similar  rule  prevails  in  most,  if  not  all  of  the  States ;  several 
recent  decisions  in  point  confirming  this  opinion.2  As  to  the 
further  question,  whether  under  the  late  married  women's  acts, 
and  our  modern  policy  of  conferring  upon  the  wife  a  separate 
estate,  the  husband's  obligation  binds  him  to  such  an  expendi- 
ture absolutely,  so  that  he  cau  neither  make  a  claim  on  her 
separate  estate  for  reimbursement,  nor  take  that  separate  estate, 
discharged  of  all  marital  trusts,  as  his  own,  subject  to  the  settle- 
ment of  just  debts  and  charges,  the  burial  expenses  included,  we 
cannot  lay  down  with  confidence  at  this  stage.3 


1  Chappie  v.  Cooper,  13  M.  &  W. 
252. 

2  Smyley  v.  Reese,  53  Ala.  89  ;  Sears 
v.  Giddey,  41  Mich.  590;  Me  Cue  v. 
Garvey,  21  N.  Y.  Supr.  562  ;  Cunning- 
ham o.  Reardoo,  98  Mass.  538 ;  Staples's 
Appeal,  52  Conn.  425  ;  41  N.  J.  Eq. 
299.  Medical  attendance  in  last  illness, 
funeral  expenses,  and  at  least  something 
to  identify  the  grave,  should  l>e  thus 
paid  for.     100  Cal.  345  ;  30  Atl.  1 124. 

3  That  a  husband  is  proximately 
liable  for  his  wife's  funeral  expeuses, 
and  is  bound  to  bury  his  wife,  admits 
now  of  no  question.  Even  if  an  adult 
son  assisted  in  giving  orders  to  the  un- 
dertaker, this  does  not  relieve  the  hus- 
band. Sears  v.  Giddey,  41  Mich.  590. 
Smyley  v.  Reese,  53  Ala  89,  inclines  to 
treat  this  obligation  as  one  somewhat 
like  that  of  supplying  necessaries,  so 
as  to  deny  to  the  husband  any  credit 
for  such  expenditure  in  the  settlement 
of  his  wife's  estate.  But  see  comments 
in  Schouler,  Hus.  &  Wife,  §  412  ;  also 
McCue  v.  Garvey,  21  N.  Y.  Supr.  562. 
The  effect  of  the  wife's  separate  owner- 
ship of  property  is  considered  in  one  or 
two  late  cases.  Under  an  Ohio  stat- 
ute a  married  woman's  estate  may  be 
cliarged    with    her    funeral    expenses, 


even  though  a  husband  having  prop- 
erty should  survive  her.  McClellan  v. 
Eilsou,  44  Ohio  St.  184.  The  same  ef- 
fect has  been  given  in  English  chancery 
where  the  wife  left  separate  property. 
M'Myn,  Re,  33  Ch.  D.  575.  In  Werin- 
ger,  Re,  100  Cal.  345,  a  husband  of 
moderate  means  was  allowed  the  cost 
of  his  wife's  monument  out  of  her 
estate. 

In  further  recognition  of  the  hus- 
band's paramount  right  in  matters  rela- 
tive to  his  wife's  burial,  it  is  held  iu 
Massachusetts  that  a  husband  who  has 
interred  his  wife  in  a  public  burial- 
ground  is  not  liable  as  a  trespasser  for 
removing  a  gravestone,  since  placed  at 
her  grave  by  her  mother,  without  injur- 
ing the  stone,  and  for  the  purpose  of 
substituting  another :  Durrell  v.  Hay- 
ward,  9  Gray,  248 ;  and  that  the  right 
of  removing  the  remains  is  his.  See 
bill  in  equity  in  Weld  v.  Walker,  130 
Mass.  423 ;  Larson  v.  Chase,  47  Minn. 
307. 

Certainly,  where  separation  took 
place  under  circumstances  which  should 
render  the  husband  liable  for  his  wile's 
subsequent  support,  he  is  liable  for  her 
necessary  funeral  and  burial  expi 
also.      Cunningham     v.     Reardon,    98 

^  307 


§201 


THE   DOMESTIC   RELATIONS. 


[PART   IL 


The  husband's  right  to  the  possession  of  the  dead  body  of  his 
spouse  for  preservation  and  burial  is  paramount,  as  a  rule,  to  that 
of  her  next  of  kin  and  all  others.1 

§  200.   Death  of  Husband  pending  Settlement  of  Wife's  Estate. 

—  Where  the  husband  himself  dies  before  the  wife's  outstanding 
personal  chattels  are  recovered,  his  next  of  kin  will  be  entitled 
to  them  in  equity.  This  is  the  rule  in  England ;  also  in 
America,  wherever,  at  all  events,  the  husband's  right  to  admin- 
ister for  his  own  benefit  is  recognized ;  for  it  is  the  necessary 
consequence  of  that  doctrine.  In  England  a  somewhat  circui- 
tous course  was  formerly  taken  in  such  cases ;  but  this  is  done 
no  longer.  If  the  husband  dies,  leaving  assets  of  his  wife  un- 
administered,  the  more  rational  rule  has  been  that  right  of 
administration  follows  the  right  of  estate,  and  devolves  upon 
the  husband's  next  of  kin.2  But  modern  policy  requires  in  such 
case  that  the  wife's  debts  be  paid  from  her  assets  as  before.3 

§  201.  Rights  in  Wife's  Real  Estate  ;  Tenancy  by  the   Curtesy. 

—  The  surviving  husband's  rights  in  the  real  estate  of  his  de- 
ceased wife  remain  to  be  noticed.  The  immediate  effect  of 
coverture,  as  we  have  seen,  is  to  invest  the  husband  with  the 
usufruct  of  all  real  estate  owned  by  the  wife  at  the  time  of  her 


Mass.  538.     And  see  Sears  v.  Giddey, 

41  Mich.  590;  Hodgson  v.  Williamson, 

42  L.  T.  G76.  But  how  far  the  divorce 
policy  may  affect  the  husband's  obli- 
ltmI  ii  .a    and     right     of    burial    is    not 

el  clearly  determined.  See  further, 
Schouler,  Has.  &  Wife,  §§  413,  414. 

1  See  preceding  note. 

'-'  Roosevelt  ;».  Ellithorp,  10  Paige, 
415;  Bryan  v.  Hooks,  25  Ga.  622; 
Ward  '■.  Thompson,  6  Gill  &  J.  349 ; 
Patterson  /•.  High,  8  Ired.  Eq.  52; 
Schouler,  Hub.  &  Wife,  §415;  Fielder 
/.  Hanyer,  3  Hag.  Ecc.  770.  But  cf. 
Bell,  Has.  &  Wife,  :>i. 

In    an    English  case   the   defendant 

I   money  fur  a  married  woman, 

and  wrote  t"  tier  that  lie  held  it  at  her 

!.      The  wife   died,  and   then   the 

husband,  who  had  uot  interfered  in  the 

matter;  and  'he  wife's  administratrix 

sued  the  defendant  for  monei  had  and 

ed  to  1  he  a se  of  the  wife,    [t  was 

308 


held  that  the  wife's  administratrix, 
rather  than  the  husband's  representa- 
tive, could  maintain  the  action.  Fleet 
v. Berlins,  L.  R.  4  Q.  B.  500 ;  s.  c.  L.  R. 
3  Q.  B.  536.  But  cf.  Coleman  v.  Hallo- 
well,  1  Jones,  Eq.  204.  In  another 
English  case  a  female  took  administra- 
tion of  the  estate  of  a  deceased  person 
as  creditor,  got  in  a  large  part  of  the 
estate,  and  paid  some  of  the  debts;  she 
afterwards  married  and  died.  The  hus- 
band had  taken  possession  of  lease- 
holds, part  of  the  estate,  but  no  fund 
had  been  set  apart  for  the  payment  of 
the  wife's  debt.  It  was  held  that  ad- 
ministration of  the  unadministered  ef- 
fects 'd  the  deceased  could  not  be  taken 
by  the  husband  in  his  own  right  as  a 
creditoi-,  but  only  as  a  representative 
of  his  wife.  Goods  of  Risdon,  L.  11.  1, 
1'.  &  I)   637, 

»  83  Ga.  715;  86  Ga.  166. 


CHAP.  XV.]  HUSBAND   AS   SURVIVOR.  §  202 

marriage,  and  of  all  such  as  may  come  to  her  during  coverture ; 
this  usufruct  being  in  the  nature  of  a  freehold,  with  beneficial 
enjoyment  of  rents  and  profits,  and  lasting,  at  all  events,  during 
their  joint  lives.1 

But  the  husband  at  the  common  law  may  acquire,  upon  a 
certain  condition,  an  enlarged  life  interest  in  his  wife's  lands, 
and  in  estates  of  inheritance  of  which  she  was  seised  in  pos- 
session during  coverture,  so  as  to  extend  beyond  her  life  if  lie 
survives  her ;  in  other  words,  he  may  be  a  tenant  by  the  cur- 
tesy. Tenancy  by  the  courtesy,  or  tenancy  by  curtesy,  is  a 
freehold  estate  in  the  husband  for  the  term  of  his  natural  life. 
He  acquires  it  by  the  fact  that  a  child  capable  of  inheritance  is 
born  of  the  marriage.  The  meaning  of  the  term  is  somewhat 
obscure.  Some  have  thought  the  word  "  curtesy  "  signifies  the 
favor  or  courtesy  with  which  the  law  regards  the  husband. 
Others  that  it  comes  from  the  Latin  word  curtis,  and  has  refer- 
ence to  the  feudal  custom  which  permitted  the  husband,  as  soon 
as  a  son  was  born,  to  attend  court  as  one  of  the  pares  curiae,  and 
do  homage  without  his  wife.  But  there  is  reason  to  believe  that 
tenancy  by  the  curtesy  existed  in  the  civil  law  during  the  reign 
of  Constantine.2  This  privilege  of  the  husband  extends  to  all 
lands  and  tenements  of  which  the  wife  was  seised  at  any  time 
during  coverture,  whether  legal  or  trust  estate,  whether  in  fee- 
simple  or  by  way  of  remainder  or  reversion.3  The  common 
law  affords  herein  a  rare  but  positive  instance  of  public  policy 
discriminating  in  favor  of  a  marriage,  accompanied  by  the 
propagation   of  children. 

§  202.  Tenancy  by  the  Curtesy  ;  Subject  continued  —  Four 
tilings  are  essential,  at  common  law,  to  entitle  a  husband  to 
curtesy.  First.  A  lawful  marriage.  Second.  Seisin  of  the  wife 
at  some  time  during  coverture.  Third.  Birth  alive  of  issue 
capable  of  inheritance.     Fourth.   Death  of  the  wife.     After  the 

1  Schouler,   Hus.   &   Wife,   §§   167,  2    Washb.  Real.  Prop.  128,  and  au- 

181;  supra,  §  89.     The  husband  cannot  thorities   cited;    2    Bl.    Com.   126,  and 

by  any  act  of  his,  after  his  wife's  death,  notes  by  Chitty  and  others ;  2  Bright, 

affect  the  title  to  his  wife's  property  Hus.  &  Wife,  116. 

of    which   he   is   already  divested  and  3  lb. ;  Co.  Litt.  30 «  ;  76.29  a,  n. 165; 

which  has  vested  in  her  heirs.     92  Ivy.  Watts  v.  Ball,  1  P.  Wms.  109. 
109. 

309 


§  202  THE   DOMESTIC    RELATIONS.  [PART   II. 

birth  of  the  child  the  husband's  title  to  curtesy  becomes  possi- 
ble ;  and  the  curtesy  is  then  initiate.  After  the  death  of  the 
wife  the  title  to  curtesy  becomes  complete  ;  and  the  curtesy  is 
then  consummate.1  For  a  full  description  of  curtesy,  with  its 
incidents,  the  reader  is  referred  to  elementary  works  on  the  law 
of  Real  Estate.2 

Questions  concerning  this  estate  are  most  commonly  raised, 
however,  with  reference  to  the  second  essential  above  stated, 
which  applied  to  the  wife's  lands  proper  to  the  obstruction  of 
her  heirs  in  their  immediate  enjoyment,  but  not  to  lands  of 
which  she  had  no  beneficial  enjoyment,  or  an  estate  merely 
expectant  while  she  lived.3 

Of  late  years  tenancy  by  the  curtesy  has  become  practically 
infrequent  in  England  by  reason  of  the  prevalence  of  marriage 
settlements  excluding  such  right.4  In  this  country  it  has  ex- 
isted in  all  of  the  older  States,  but  is  modified  in  some  of  them 
expressly  or  by  implication,  by  late  statutes.  In  Iowa  and 
Indiana,  curtesy  is  expressly  abolished,  and  a  certain  defined 
interest  in  the  wife's  real  estate,  of  the  dower  sort,  goes  to  her 
husband  instead,  by  way  of  inheritance.  In  Texas,  California, 
Louisiana,  and  other  States  where  the  tenure  of  real  estate 
comes  from  the  community  or  civil  law,  rather  than  the  common 
law,  curtesy  is  not  recognized.  In  some  of  the  States  the  right 
of  curtesy  appears  to  be  denied  to  husbands  who  wilfully  neglect 
and  desert  their  wives.  In  most  New  England  States,  and  in 
various  other  parts  of  the  country,  tenancy  by  the  curtesy  is 
expressly  reserved  by  statute.5  It  is  decided  that  curtesy  still 
exists  in   New  York,  though   doubts  were  at  one    time  enter- 

1    I   Washb.  Hon]  Prop.  130.  expressed   in  order   to  debar  the  hus- 

-  Ibid.  127  el   seq.;  Williams,  Heal  band.      Act     1882   does    not    exclude 

Prop,  si],  ed.  218;  4  Kent,  Com.  27-35.  curtesy  as  a  right.     [1892]  2  Ch.  336. 

And  see  Schooler,  Hub.  &  Wife,  §§420-         «  See    statutes   of    different    States 

A  tenancy  by  the  curtesy  initiate  cited  in  1' Washb.  Real  Prop.  258,  and 

[able  and  assignable.    Briggs  note;  and  notes  to  4  Kent,  Com.  34. 

».  Titus,  13    B.  I.  I86j  Bozarth  v.  Lar-  Statute   provisions  as    to   curtesy  and 

I  '■  HI-  ■'•>■  dower  are  frequently  alike.     And  see 

8  See  Todd  v.  Oviatt,  58  Conn.  174.  Schouler,  Hus.  &  Wife,  §  424,  and  ap- 

4  Williai         Real     Prop.     L87 ;     I  pendix,  for  changes,  some  of  which  (as 

Washb.   Real   Prop.  129.     Such  excln-  in  Massachusetts  for  instance)  are  very 

ttlement  should   be  plainly  recent. 

810 


CHAP.  XV.j 


HUSBAND   AS   SURVIVOR. 


tained  ;  and  under  statute  qualifications,  or  independently  of 
them,  curtesy  obtains  in  perhaps  the  majority  of  States.  In- 
deed, curtesy  consummate,  under  the  married  women's  acts,  is 
found  protected,  notwithstanding  the  husband's  usufruct  during 
his  wife's  life  is  taken  away  or  modified.1  In  some  States  under 
the  latest  codes  the  interest  of  the  husband  in  his  deceased 
wife's  real  estate  is  an  absolute  one  in  fee ; 2  or  curtesy  is 
conferred  regardless  of  the  birth  of  a  child.3 

§  203.  Husband's  Claims  against  Wife's  Real  Estate  ;  Improve- 
ments, &c.  —  Inasmuch  as  the  husband's  interest  in  his  wife's 
lands  is  limited  to  the  usufruct  as  a  life  tenant,  and  An^lo- 
Saxon  policy  has  been  that  landed  property  should  descend  to 
one's  blood  relations,  whatever  its  comparative  disregard  for 
things  personal,  it  follows  that  all  claims  presented  by  the  hus- 
band against  his  wife's  real  estate,  after  her  death,  in  relation  to 
such  property,  will  be  closely  scrutinized.  Thus  it  has  been 
held  that  he  cannot  claim  reimbursement  for  moneys  paid  in 
settling  controversies  in  regard  to  the  title  of  his  wife's  real 
estate.4  So  the  general  rule  is  strict  as  regards  improvements 
made  by  the  husband  upon  his  wife's  real  estate  where  he  seeks 
allowance.5 


1  Porch  v.  Fries,  3  C.  E.  Green,  204  ; 
Lynde  v.  McGregor,  13  Allen,  182. 

2  Hooper  v.   Howell,  52  Ga.  315;  1 
Washb.  129. 

s  1  Washb. 
Sawyer,  249. 

4  Campbell 
362  ;  Burieiffh 


129;   Elliott  v.  Teal,  5 


Wallace,    12    N.    H. 

Coffin,  2  Fost.  118. 
And  see  Warren  v.  Jennison,  6  Gray, 
559.  But  see  2  Story,  Eq.  Jur.  §  1023 ; 
Pitt  v.  Pitt,  1  Turn.  &  Russ.  180; 
Shrewsbury  v.  Shrewsbury,  1  Ves.  Jr. 
233  ;  Jenness  v.  Robinson,  10  N.  H.  218. 
5  The  English  doctrine  is,  that  if 
the  husband  erects  buildings  upon  his 
wife's  lands,  or  otherwise  makes  per- 
manent improvements  thereon,  expend- 
ing his  own  money  for  such  purpose, 
the  presumption  is  that  he  intended  the 
expense  for  his  wife's  benelit,  and  he 
cannot  recover  for  it.  1  Roper,  Hus.  & 
Wife,   54;   Campion  v.  Cotton,  17  Ves. 


264;  1  Washb.  Real  Prop.  281.  Sev- 
eral cases  of  this  sort  have  come  before 
our  own  courts  quite  recently,  the  claims 
being  usually  presented  after  the  wife's 
death  ;  and  this  principle  has  been  rig- 
idly applied,  though  doubtless  occasion- 
ing in  some  instances  positive  hardship 
and  wrong.  Burleigh  v.  Coffin,  2  Fost. 
118;  White  v.  Hildreth,  32  Vt.  265  ;  Bre- 
vard v.  Jones,  50  Ala.  221  ;  Washburn 
v.  Sproat,  16  Mass.  449.  See  also  Schou- 
ler,  Hus.  &  Wife,  §425;  113  Mo.  27. 

Where  husband  and  wife  joined  in  a 
lease  of  property  in  which  the  wife  had 
only  a  life  tenancy  with  the  husband 
after  her  death  to  become  the  owner, 
the  lease  as  to  the  wife  ended  at  her 
death.     133  Penn.  St.  474. 

Concerning  the  icilhof  married  women, 
the  law  of  which  is  greatly  affected  by 
recent  statutes  which  tend  to  place  hus- 

311 


§204 


THE   DOMESTIC    RELATIONS. 


[PART  II. 


CHAPTER   XVI. 

DEATH     OF     THE     HUSBAND;     EIGHTS     AND     LIABILITIES     OF     THE 
SURVIVING    WIFE. 

§  204.  "Widow's  Right  to  Administer.  —  On  the  dissolution 
of  a  marriage  by  the  death  of  the  husband,  the  widow  is  usually 
selected  to  administer  upon  his  estate,  provided  she  be  willing 
and  competent  to  take  the  trust.  But  her  right  of  administra- 
tion on  her  husband's  estate  is  not  co-extensive  with  that  of 
the  husband  on  her  estate.  For  in  the  one  instance  the  hus- 
band is  to  be  preferred  to  all  others ;  whereas,  in  the  other, 
administration  may  be  granted  by  the  court,  at  discretion,  either 
to  the  widow  alone,  or  to  the  next  of  kin,  or  to  both  together.1 
This  is  the  law  in  England,  and  the  same  prevails  generally  in 
this  country,  under  the  statutes  of  the  different  States.2 


band  and  wife  on  a  mutual  footing,  and 
enlarge  the  wife's  capacity  in  equity 
to  make  testamentary  disposition  of 
her  separate  estate,  see,  at  length, 
Schooler,  Hus.  &  Wife,  §§  457-470, 
and  appendix.  So,  too,  as  to  a  wife's 
testamentary  appointment  in  execution 
of  a  power,  lb.  §  470.  The  husband's 
assent  has  been  an  important  element 
in  such  cases  until  quite  recently,  lb. 
§  458.  And  see  Schouler,  Wills,  Tart 
II.  c.  3. 

The  marriage  of  a  woman  was  for- 
merly  deemed  a  revocation  of  her  \\  ill 
ed  while  single,  while  marriage 
and  the  birth  of  a  child  was  the  rule 
applied  to  a  man.  Kecent  statutes 
tend  '"  place  the  spouses  on  an  equal 
footing  in  this  respect;  so,  too,  in  the 
disability  of  one  spouse  to  dispose  abso- 
Intely  by  will  t . .  the  prejudice  <>f  the 
other,  preserving  some  rcriproc.il  con- 
straints, which  i>  sound  policy.  Schou- 
ler, I  Ins.  &  Wife,  §§   II 2,  157.      And  sec 

Schouler,  Wills,  ;;§  424-426;  3  Jarm. 
Wills,  5th  Am.  ed.  783, 

1  1  Sftlk.  36;  li  Vin.  Abr.  92;  Anon. 

312 


Stra.  552;  Macq.  Hus.  &  Wife,  145; 
Case  of  Williams,  3  Hag.  Ecc.  217. 
See  Goods  of  Ihler,  L.  R.  3  P.  &  D.  50, 
as  to  right  of  a  widow,  having  lived 
separate  from  her  husband,  to  admin- 
ister. 

2  2  Kent,  Com.  410,  411,  and  notes. 
But  by  the  New  York  Statute  (vol.  2, 
p.  74,  Rev.  Stats.),  the  widow  and  next 
of  kin  are  designated.  Grant  of  ad- 
ministration revoked,  where  it  appeared 
that  the  marriage  under  which  E. 
claimed  to  be  widow  was  void.  O'Gara 
v.  Eisenlohr,  38  N.  Y.  296.  And  see 
Mack  !).  State,  63  Ala.  138;  Schouler, 
Executors,  §§  99,  106,  126. 

As  to  administration  de  lionis  non  of 
the  husband's  estate,  where  the  widow 
took  out  administration,  carried  on  her 
late  husband's  business,  and  then  died 
intestate  and  insolvent,  see  Fairland  r. 
Percy,  3  1'.  &  I).  217.  And  see,  gen- 
erally, Widgery  r.  Tepper,  5  Ch.  1). 

516.  Widow  was  refused  administra- 
tion where  she  had  left  her  husband  and 
lived  apart  without  good  cause.  126 
IN  nil.  St.  34  1. 


CHAP.  XVI.]  SURVIVING   WIFE'S   RIGHTS.  §  205 

§  205.  Widow's  Distributive  Share  in  Personalty.  —  Under 
the  English  statute  of  distributions,  22  &  23  Car.  II.  c.  10,  the 
widow  surviving  her  husband,  who  deceased  intestate,  is  entitled 
to  one  third  of  the  personal  property  which  remains  after  pay- 
ment of  the  husband's  debts,  while  the  remaining  two  thirds 
go  to  the  children  or  their  representatives.1  The  widow's  share 
is  not  unfrequently  termed  her  "thirds/"  or  incorrectly  her 
"  thirds  of  personal  estate  at  common  law." 2  The  statute 
further  provides  that  when  the  husband  dies  intestate,  leaving 
a  widow  only  and  no  lineal  descendant,  the  widow  is  entitled 
to  a  moiety,  or  half  of  his  personal  estate,  and  the  other  half 
goes  to  the  husband's  next  of  kin.  When  there  are  no  next  of 
kin,  the  widow  is  not  entitled  to  the  whole  of  her  husband's 
personal  estate ;  but  one  half  belongs  to  her,  and  the  other  half 
goes  to  the  crown.3  Here,  too,  the  wife's  right  is  not  co-equal 
with  that  of  her  husband  :  for  he  surviving  her  takes  the  whole 
of  her  personal  estate ;  while  she  surviving  him  cannot  in  any 
event  be  entitled  to  more  than  one  half  of  his  personal  estate, 
even  though  the  estate  consisted  wholly  of  property  which  be- 
longed to  her  before  marriage.  It  is  held  that  the  widow  of  a 
deceased  child  cannot  take  as  a  representative  of  such  child 
under  the  statutes  of  distribution.4  The  husband  and  wife,  by 
a  marriage  settlement,  may  exclude  one  another  from  all  bene- 
fits by  way  of  distribution  in  their  respective  estates,  other 
provisions  having  been  substituted  by  way  of  recompense.5  In 
this  country  the  statute  of  Charles  II.  is  at  the  basis  of  our 
legislation  regarding  the  estates  of  intestates,  though  modifica- 
tions are  frequently  to  be  met  with.6 

It  is  held  that  a  bequest  to  the  wife  by  the  husband,  in  full 
of  her  legal  claims,  is  no  bar  to  her  right  to  a  distributive  share 
in  a  lapsed  bequest.7     So  acts  of  the  husband  during  his  life- 

1  2  Bl.  Com.  515,  516.  4  Price  v.  Strange,  6  Madd.  161. 

2  See  Lord  Cottenham,  in  Gurley  v.  e  Earl  of  Buckinghamshire  v.  Drury, 
Gurley,  6  CI.  &  Fin.  741 ;  Macq.  Hus.     2  Eden,  60. 

and  Wife,  146.  6  See  2  Kent,  Com.  11th  ed.  427, 428. 

8  2  Bl.  Com.  515,  516;  2  Kent,  Com.  and   notes;    Schouler,    Hus.    &    Wife, 

427;  Cave  v.  Roberts,  8  Sim.  214.     In  §  427,  and  appendix,  as  to  these  changes 

certain  localities  of  England  a  different  in  different  States, 
rule  prevails;    the   local  customs  con-  7  Garthshore  v.  Chalie,  10  Ves.  Jr.  I. 

tinuing  in  force.     2  Bl.  Com.  518.  But  see  Wright  >■.  Fearis,  3  Swanst.  181 

313 


§  207 


THE   DOMESTIC    RELATIONS. 


[PAIIT   II. 


time,  committed  for  the  purpose  of  defrauding  the  wife  of  her 
distributive  share  in  his  personal  estate  after  his  decease,  have 
sometimes  been  set  aside  in  equity.1  But  no  voluntary  gift  of 
the  husband  made  during  his  life  to  a  third  party  constitutes  of 
itself  a  fraud  upon  his  eventual  widow.2 

§  206.  Widow's  Waiver  of  Provision  of  Will.  —  The  wife's 
privilege  is  carried  even  farther  in  Massachusetts  and  various 
other  States,  by  a  statute  which  permits  the  widow  to  waive  a 
provision  made  for  her  by  her  husband's  will,  and  thereupon  to 
take  such  portion  as  the  law  would  have  given  her  had  he  died 
intestate.3  But  this  privilege  is  accorded  with  some  restrictions 
as  to  the  full  amount  to  be  allowed  her.4  The  right  on  her  part 
becomes  complete  upon  her  formal  renunciation  of  the  provi- 
sions under  the  will,  without  any  surrender  of  property  under 
the  will.5  But  her  election  must  be  strictly  made  within  the 
time  designated  by  statute.6  And  it  is  to  be  inferred  that  the 
right  of  election  is  personal  to  herself,  and  cannot  be  exercised 
by  her  representatives  or  kindred  after  her  death.7 

§  207.  Widow's  Allowance.  —  Another  liberal  provision  made 
by  the  legislatures  of  some  American  States  is  that  known  as  the 
widow's  allowance.  This  is  a  reasonable  sum,  such  as  the  Court 
of  Probate  may  order,  as  necessaries  to  the  widow  for  herself 
and  the  family,  or,  if  there  be  no  widow,  to  the  minor  children. 
The  allowance  is  set  apart  as  something  superior  to  the  claims 
of  general  creditors,  and  is  even  preferred  to  the  expenses  of 


1  Hays  v.  Henry,  1  Md.  Ch.  337. 
Cf.  Padfield  v.  Padfield,  78111.  16.  And 
see  S'chouler,  II us.  &  Wife,  §  428. 

'-'  Lines  v.  Lines,  142  Penn.  St.  149. 
Here  it  is  strenuously  maintained  that 
a  husband's  control  of  hisowu  property 
is  absolute  during  his  life,  so  that  a 
widow's  rights  attach  only  to  what  lie 
leaves  al  In-  death.    Ih. 

Mass  Statu.  1861,  c.  164;  Firth  v. 
■i  A llni,  468  ;  Towle  v.  Swasey, 
106  Ma  b  100,  Similar  statutes  are  in 
force  in  ol  her  States.  White  o,  I  lance, 
53  111.  413;  Stockton  v.  Wooley,  '-'<) 
Ohio  St.  i  - 1  :  Arrington  v.  1  >ortch,  77 
N.  C.  367;  Cummings  v.  Cummings, 
.M    Mo.   261       In   some   States  the  hus- 

31  I 


band  now  has  a  corresponding  right  of 
waiver  under  his  wife's  will.  Schouler, 
Una.  &  Wife,  §  206;  §  203,  note; 
Schouler,  Wills,  §§  424-4S6. 

4  Crozier's  Appeal,  90  Penn.  St 
384;  Register  v.  Hensley,  70  Mo.  189. 
In  re  Wilhor,  52  Wis.  295. 

5  Register  v.  Hensley,  70  Mo.  189. 

8  Waterbury  v.  Netherland,  6  Heisk. 
512.  Here  she  had  relied  on  the  legal 
advice  of  the  executor. 

7  So  held  in  Crozier's  Appeal,  90 
Penn.  St.  384.  Otherwise  in  Indiana. 
Bratney  v.  Curry,  33  Ind.  339.  In 
Massachusetts  the  right  is  treated  as 
personal  to  the  widow. 


CHAP.  XVI.]  SURVIVING   WIFE'S   RIGHTS.  §  208 

administration,  funeral,  and  last  illness  of  the  husband.1  The 
amount  is  at  the  discretion  of  the  court ;  and  where  the  hus- 
band has  died  insolvent,  leaving  few  assets,  it  is  not  uncommon 
for  the  whole  of  the  personal  property  to  be  thus  awarded  to 
the  widow,  whereby  is  afforded  an  expeditious  means  of  settling 
perplexing  little  estates.2  But  though  such  an  award  may  dis- 
regard the  husband's  general  creditors,  it  cannot  displace  a  law- 
ful lien  or  incumbrance,  but  applies  only  to  what  may  specifically 
remain  after  satisfying  the  security.3 

§  208.  Widow's  Paraphernalia.  —  The  widow's  paraphernalia 
is  a  species  of  property  recognized  at  the  common  law,  though 
borrowed  from  the  civilians.  It  consists  of  such  articles  of 
wearing  apparel,  personal  ornament,  and  personal  convenience 
as  are  suitable  to  a  wife's  rank  and  degree,  and  such  as  she  con- 
tinued to  use  during  the  marriage.4  The  term  paraphernalia  is 
derived  from  the  Greeks,  and  transmitted  to  England  through 
the  civil  law.  But  while  the  wife's  paraphernalia  at  the  civil 
law  resembled  what  we  call  the  wife's  separate  property,  the 
word  itself  has  a  more  limited  signification  in  England  and 
America,  being  confined  to  personal  necessaries  or  ornaments, 
and  having  no  possible  application  to  real  estate.5  The  com- 
mon-law doctrine  of  paraphernalia  is  this  :  that  the  suitable 
ornaments  and  wearing  apparel  of  a  married  woman,  which  she 
had  at  the  time  of  her  marriage,  or  which  come  to  her  through 
her  husband  before  or  during  coverture,  remain  his  personal 
property  during  his  life,  and  he  may  sell  and  dispose  of  them 

1  SemhJe,  this  statute  allowance  is  fied  "something  over  and  above  her 
intended  for  temporary  necessity  only,  dower ; "  whereas,  as  a  late  English 
155  Mass.  141.  writer  observes,  it  really  meant  some- 

2  Schouler,  Plus.  &  Wife,  §  430 ;  thing  of  her  own,  not  surrendered  byi 
Schouler,  Executors,  §§  448-457.  She  her  at  her  marriage  ;  something  re- 
may  debar  herself  by  marriage  settle-  served  and  kept  back  from  the  dos,  or 
ment  from  asserting  any  such  claim  fortune,  which  she  brought  her  husband, 
against  her  husband's  estate  as  well  as  Macq.  Hus.  &  Wife,  152.  "Dowry" 
any  distributive  right.  See  §  183;  cf.  may  have  been  the  word  intended  by 
113  111.461.  Blackstone.    See  Schouler,  Hus.  &  Wife, 

3  King  v.  Goodwin,  130  111.  102;  §§  342,  343,  431.  In  Re  Harrall,  31 
16  Col.  431.  N.   J.   Eq.    101,  the  word    "parapher- 

4  2  Bl.  Com.  436;  Macq.  Hus.  &  nalia"  appears  to  be  used  as  synonymous 
Wife,  147.     See  §  160,  supra.  with  "  separate  estate,"  ornaments,  &c. 


5  Blackstone   says  the   word   signi- 


515 


208 


THE   DOMESTIC   RELATIONS. 


[PART   II. 


during  his  life  ;  but  such  as  remain  at  the  time  of  his  death  be- 
long thenceforth  to  her  absolutely  as  her  'paraphernalia.1  It 
seems  that  he  may  even  give  them  away  while  coverture  lasts 
in  the  exercise  of  his  marital  rights.  For  the  loss  thereof  the 
wife  cannot  sue  alone,  but  the  husband  sues  as  for  his  own 
property.2  But  he  certainly  cannot  bequeath  them  to  his  wife ; 
nor  on  principle  dispose  of  them  as  donatio  causa  mortis? 

Paraphernalia  are  therefore  to  be  distinguished  from  the 
wife's  separate  property,  which  we  have  considered,  inasmuch 
as  her  rights  are  perfected  only  when  she  becomes  a  widow  ; 
while  the  property  is  alienable,  net  by  herself,  but  by  her  hus- 
band during  his  life.4  Such  gifts  from  the  husband  are  further 
to  be  distinguished  from  gifts  bestowed  solely  upon  the  wife  by 
her  father,  or  by  a  relative,  or  even  by  a  stranger.  For  in  the 
latter  instance  they  would  be  deemed  gifts  to  her  separate  use  ; 
and  then,  if  received  with  the  husband's  consent,  neither  he  nor 
his  creditors  could  afterwards  dispose  of  them.5 


1  Tipping  v.  Tipping,  1  P.  Wms. 
730;  1  Rolle,  911,  L.  35;  Com.  Dig. 
Baron  &  Feme,  Paraphernalia ;  Macq. 
Hus.  &  Wife,  147,  148 ;  State  v.  Hays, 
21  Ind.  288.  See  Rawson  v.  Pennsyl- 
vania R.  R.  Co.,  48  N.  Y.  212. 

2  Hawkins  v.  Providence  R.,  119 
.Mass.  596  ;  McCormick  v.  Penn.  Cen- 
tral R.,  49  N.  Y.  303. 

3  2  Bl.  Com.  436;  Noy's  Max.  Ch. 
49. 

4  Cro.  Car.  344 ;  Com.  Dig.  Baron 
&  Feme,  Paraphernalia.     The  parapher- 

liffer  also  from  the  wife's  pin- 
money.  Supra,  §§  1  GO,  161.  Married 
women's  acts  may,  of  course,  render  the 
wife's  clothing,  jewelry,  &c,  absolutely 
hei  own.     Sect  supra,  c.  9. 

6  2  Story,  Eq.  Juris.  555.  Mere  or- 
naments for  a  parlor  are  not  to  he 
treated  as  paraphernal  property.  Gra- 
ham v.  Londonderry,  3  Atk.  393.  Nor 
can  articles  be  claimed  as  Buch  which 

d  Eact,  heirlooms.  Calmady  v. 
Calmady,  n  Yin.  Abr.  181,  182.  But 
a  gold  watch  worn  by  the  wife  of 
one  who  maintains  a  f;iir  social  posi- 
tion  may   be  treated  as  paraphernal. 

316 


Tllexan  v.  Wilson,  43  Me.  1 86.  A  "  ne- 
essary  bed  "  is  paraphernal.  See  Com. 
Dig.  Baron  &  Feme,  Paraphernalia. 
Jewels  purchased  by  the  husband,  and 
worn  by  the  wife  with  her  other  orna- 
ments, it  is  said,  become  her  parapher- 
nalia, in  absence  of  evidence  to  the  con- 
trary ;  while  family  jewels,  by  merely 
being  worn  by  the  wife,  do  not.  Jer- 
voise  v  Jervoise,  17  Beav.  566  Where 
a  piece  of  jewelry,  in  possession  of  the 
husband  at  the  time  of  marriage  as  an 
heirloom,  is  greatly  enhanced  in  value 
by  adding  new  diamonds,  and  is  then 
given  to  the  wife  to  wear,  though  be- 
queathed to  his  heirs,  the  rule,  as  laid 
down  by  Lord  Chancellor  Macclesfield, 
is  to  separate  the  new  diamonds  after 
the  husband's  death,  and  bestow  them 
upon  the  widow  as  her  paraphernalia, 
leaving  the  heirs  to  enjoy  the  residue. 
Calmady  v.  Calmady,  11  Vin.  Abr.  181, 
182.  And  the  old  books  say  that  if 
the  husband  delivers  cloth  to  his  wife 
for  her  apparel,  and  dies  before  it  is 
made  up,  she  shall  hare  the  cloth.  1 
Rolle,  911,  L.  35;  <'om.  Dig.  Baron  & 
Feme,    Paraphernalia.      The    question 


CHAP.  XVI.]  SURVIVING   WIFE'S   RIGHTS. 


§  208 


Paraphernalia  would  seem  to  be  so  far  personal  to  the  widow 
that,  if  not  claimed  by  her  during  her  lifetime,  they  cannot, 
after  her  death,  be  demanded  by  her  executor  or  administrator. 
Accordingly,  it  is  held  that  if  the  husband  should  bequeath 
them  to  her  for  life,  and  then  over,  and  she  should  make  no 
election  to  have  them  as  her  paraphernal  goods,  her  represen- 
tative after  her  decease  would  be  excluded.1  But  in  a  modern 
English  case,  not  only  was  the  committee  of  the  widow,  being 
a  lunatic,  permitted  to  elect  in  her  stead  while  she  remained 
alive  ;  but  upon  her  subsequent  death,  her  next  of  kin  were 
allowed  to  come  in  and  choose  whether  to  take  the  parapher- 
nalia or  the  benefits  given  her  under  her  husband's  will ;  and, 
upon  their  choice  of  the  former,  an  order  in  chancery  was  made 
accordingly.2 

The  wife's  paraphernal  property  is  subject  to  her  husband's 
debts  during  his  life  ;  for  in  truth  it  is  not  then  her  property  at 
all.3  Nor  can  she  maintain  an  indictment  against  any  one  who 
steals  it,  while  her  husband  is  alive.4  So,  too,  it  is  liable  for 
his  debts  after  his  death,  when  there  is  a  deficiency  of  assets  in 
the  administrator's  hands.5  But  even  then  her  necessary  cloth- 
ing is  protected  ;  for,  in  the  words  of  an  ancient  judicial  reso- 
lution, "  She  ought  not  to  be  naked  or  exposed  to  shame  and 
cold."6  And  in  many  of  the  United  States  there  are  at  the 
present  day  statutes  which  justly  reserve  to  the  widow,  in  any 


of  value  is  not  material  in  setting  off 
the  widow's  paraphernalia,  so  long  as 
the  articles  are  suitable  to  her  degree. 
lb. ;  Macq.  Hus.  &  Wife.  148.  And 
while  the  modern  cases  which  turn  ou 
such  questions  are  rare,  especially  in 
this  country,  it  cannot  lie  doubted  that 
a  liberal  rule  would  at  this  day  be 
applied  in  the  widow's  favor. 

As  to  personal  ornaments,  it  seems 
to  be  an  important  element  in  the  title, 
that  the  wife  should  he  seen  to  wear 
them  at  intervals.  Particularly  is  this 
true  where  the  husband  kept  them  in 
his  own  possession ;  for  otherwise  it 
might  be  said  that  he  never  gave  them 
to  her.  But  it  is  enough  to  establish 
her  claim  that   he  had  allowed  her  to 


wear  them  on  birthdays  or  other  suit- 
able occasions.  Graham  v.  London- 
derry, 3  Atk.  393. 

1  Macq.  Hus.  &  Wife,  150;  Charges 
v.  Albemarle,  2  Vern.  246  ;  Com.  Dig. 
Baron  &  Feme,  Paraphernalia. 

2  In  re  Hewson,  23  E.  L.  &  Eq. 
283. 

3  Tllexan  v.  Wilson,  43  Me.  186;  1 
Bright,  Hus.  &  Wife,  288. 

4  State  v.  Hays,  21  Ind.  288. 

6  2  Bl.  Com.  436 ;  Macq.  Hus.  & 
Wife,  147,  149  ;  Snelson  v.  Corbet,  3 
Atk.  369 ;  Howard  v.  Menifee,  5  Pike, 
668;  Ridout  v.  Earl  of  Plymouth,  2 
Atk.  104. 

0  1  Rolle,  911,  L.  35,  cited  in  Macq. 
Hus.  &  Wife,  147. 

317 


§209 


THE   DOMESTIC    RELATIONS. 


[PART   II. 


event,  necessaries  in  the  house  at  the  time  of  her  husband's 
death,  and  the  ornaments  and  clothing  of  herself  and  children.1 
If  a  husband  pawn  his  wife's  paraphernalia  as  collateral  secu- 
rity for  money  borrowed,  and  give  power  to  the  lender  to  sell 
for  a  sum  certain  during  his  absence,  this  will  not  be  deemed 
an  absolute  alienation,  but  shall  stand  as  a  pledge  redeemable 
by  the  widow ;  and  if  the  husband  have  left  sufficient  to  redeem 
(after  payment  of  all  his  debts),  she  is  entitled,  under  the  rules 
of  equity,  to  have  the  redemption  money  raised  out  of  his  per- 
sonal estate.2  But  creditors  must  first  be  satisfied  in  all  cases ; 
though  the  widow's  right  in  respect  to  such  property  is  superior 
to  that  of  any  legatee  of  the  husband.3 

§  2 09.  Equity  of  Redemption  and  Exoneration  in  Mortgages. 
—  We  have  already  observed  that  a  wife  may  join  with  her 
husband  in  executing  a  mortgage  of  her  general  real  estate  as 
security  for  his  debts,  and  that,  if  this  mortgage  be  properly 
foreclosed,  and  equities  of  redemption  barred,  her  right  to  the 
real  estate  is  gone.4  We  have  also  seen  that  the  wife's  separate 
real  estate  maybe  thus  encumbered.5  Yet  the  courts  have  gone 
as  far  as  they  consistently  could  in  upholding  the  wife's  title 
under  such  circumstances,  and  in  allowing  her  all  the  privi- 
leges of  a  surety.6  In  the  first  place,  they  favor  her  right  to 
the  equity  of  redemption  as  against  her  husband ;  in  the  second 
place,  they  allow  exoneration  or  reimbursement  from  her  hus- 


1  See  Mass.   Gen.  Stats,  c.  96,  §§  4, 
5;  Ginochio  v.  Porcella,  3  Bradf.  Sur. 

■2". 

2  Graham  v.  Londonderry,  3  Atk. 

393.      In    ft    Ilarrull,  31    X.  J.  Eq.  101, 

this  same  rule  is  applied   in   equity  to 

the  guardian  of  a  lunatic  husband,  who 

pawned  the  wife's  jewels,  while  sane,  to 

pay  his  persona]  expenses,  the  lunatic's 

being  ample.     Here  the  lunatic 

ill   alive,  which  make-   the  case 

somewhal   anomalous;    though,  semble, 

a   wife's   ornaments    were    here  treated 

separate  property. 

/  ■  ;  Tipping  v.  Tipping,  I  P.  Wins. 

729  ;B  irl  of  Plyroouth,2  Atk. 

[04  ;  Burton  v.  Pierpont,  2  P.  Wms  80. 

And    i  oti assets 

318 


come  to   hand   afterwards,   the   wife's 
claim  is  gone.     lb. 

Letters  written  to  a  wife  by  a  former 
husband  belong  to  her  and  not  to  his 
estate;  and  her  own  gift  of  them  is 
valid  as  against  the  executor  of  such 
estate  or  her  second  husband.  Grigsby 
v.  Breckenridge,  2  Hush,  480.  And  see 
64  Vt.  450.  See,  further,  Schouler, 
IIus.  &  Wife,  §  432,  as  to  appropriating 
real  estate  to  pay  debts,  before  the 
paraphernalia  can  be  taken. 

4  See  supra,  §  94,  and  cases  cited. 

5  Supra,  §§  137,  152,  and  cases 
cited. 

6  As  to  these  privileges,  see  supra, 
§§137,  152. 


CHAP.  XVI.]  SURVIVING    WIFE'S    RIGHTS.  §  211 

Land's  estate,  after  his  death,  where  the  assets  prove  sufficient 
fur  that  purpose.1 

To  the  wife  also  belongs  the  right  in  equity  to  have  her  es- 
tate exonerated  out  of  her  husband's  personal  and  real  assets. 
This  is  known  as  the  wife's  equity  of  exoneration.2 

§  210.  Controversies  between  Administrator  and  Widow.  — 
Controversies  between  a  widow  and  her  husband's  administrator 
are  not  unfrequent ;  and  it  is  manifest  that  at  the  common  law 
the  widow's  situation  with  reference  to  personal  property  which 
she  had  brought  with  her  into  the  marriage  state  was  often  ex- 
tremely hard.  But  equity  protects  a  restriction  imposed  on  trust 
funds  for  her  benefit,  even  as  against  her  own  indiscreet  conduct.3 
Nor  are  instances  wanting  where  a  widow's  hasty,  inconsiderate 
and  foolish  acts  with  reference  to  property  rights  acquired  by 
her  in  her  deceased  husband's  estate  have  been  deemed  inopera- 
tive ;  her  distributive  share  and  allowances  being  preserved  for 
her  by  the  courts  as  against  herself,  so  to  speak.4 

A  widow  must  not  intermeddle  with  her  late  husband's  estate, 
nor  assume  duties  which  properly  devolve  upon  the  execu- 
tor or  administrator.6  And  when  representative  herself  of  her 
husband's  estate,  she  is  fairly  expected  to  enjoy  the  usual  rights 
and  assume  the  usual  responsibilities  pertaining  to  the  office.6 

§  211.  Widow's  Obligation  to  bury  Husband;  Her  Rights,  &c. 
—  The  common-law  obligation  of  the  widow  to  bury  her  deceased 
husband  rests  upon  weaker  foundations  than  the  corresponding 
obligation  of  the  husband.     In  truth  it  seems  somewhat  incon- 

1  See  Ruscombe  v.  Hare,  6  Dow,  1 ;  Trusts,  L.  R.  10  Cli.  D.  490;  Schouler, 
Jackson  v.  Innes,  1  Bli.  115.  And  see  Hus.  &  Wife,  §§  308,  437;  supra,  §§  155, 
Schouler,  Hus  &  Wife,  §  434.  194. 

2  2  Saund.  177  ;  1  Mod.  290;  Robin-  *  See  Maull  v.  Vaughn,  45  Ala.  134; 
son  v.  Gee.  1  Ves.  Sen.  252,  per  Lord  Cammack  v.  Lewis,  15  Wall.  643.  The 
Hardwicke  See  Schouler,  Hus.  &  widow  may  make  a  valid  promise  with 
Wife,  §§  274,  435.  The  principle  is  or  without  giving  security  to  pay  a 
that  the  wife,  when  mortgaging  her  valid  debt  of  her  husband's  out  of  her 
property  for  her  husband's  debt,  stands  own  separate  means.  140  Penn.  St.  63. 
in  the  position  of  a  surety,  and  there-  5  Keating  v.  Condon,  68  Penn.  St. 
fore  may  claim  indemnity  from  the  prin-  75 ;  Leach  v.  Prebster,  35  Ind.  415. 
cipal  for  whose  benefit  her  security  G  See  Ready  v.  Hamm,  46  Mi-*, 
was  interposed.  422;  Pox  v.   Doherty,  30    Iowa,   334; 

8  See   e.  g.   Dunn   v.   Lancaster.    4    Moseley  v.  Rendell,  L.  R.  6  Q.  B.  338; 
Bush,  581  ;  34  N.  J.  Eq.  82  ;  Allen  v.     158  Mass.  342. 
Allen,    80    Ala.    180;     Re    Peacock's 

319 


212 


THE  DOMESTIC   RELATIONS. 


[PART  II. 


sistent  with  the  doctrine  of  coverture ;  for  why,  it  may  be  asked, 
should  a  woman  answer  for  the  indigence  of  one  who  ought  to 
provide  her  necessaries  and  his  own,  and  whose  lawful  privilege 
it  was  to  strip  her  of  her  own  means  of  support  ?  Where  the 
husband  leaves  an  estate,  the  funeral  expenses  are  to  be  paid 
by  his  executor  or  administrator,  and  not  by  his  widow.  This 
is  the  rule  both  in  England  and  America ;  and  it  is  doubtless 
reasonable  so  far  as  it  goes.1  If  the  husband's  estate  is  suffi- 
cient, it  ought  to  bear  the  expense  of  his  burial.  Modern  policy 
as  to  family  necessaries  may  suggest  a  new  departure  ; 2  or  a  wife 
with  property  of  her  own  may  agree  expressly  to  bear  the  charge. 

But  as  to  possession  of  the  dead  body  of  the  spouse  for  pres- 
ervation and  burial,  modern  inclination  is  to  treat  a  surviving 
wife  with  the  same  paramount  consideration,  as  against  strangers 
and  even  the  next  of  kin,  which  a  surviving  husband  receives ; 
where,  at  all  events,  the  conjugal  companionship  lasted  until 
her  husband's  death.3 

§  212.  Effect  of  Husband's  Death  upon  "Wife's  Agency.  — 
Where   a   married  woman   contracts  with   authority  from  her 


1  2  Redf.  Wills,  224  ;  2  Wms.  Ex'rs, 
871  ,  Macq.  Hus.  &  Wife,  183.  But  in 
an  English  case,  decided  not  many  years 
ago,  the  court  seemed  to  regard  this 
subject  somewhat  differently,  and  in- 
timated that  husband  and  wife  should 
stand  upon  a  like  footing  as  regarded 
the  obligation  of  burying  one  another. 
Here  a  widow,  who  was  also  an  infant, 
was  held  bound  by  her  contract  for  the 
expense  of  her  husband's  interment. 
I  be  derision  proceeded  upon  the  inge- 
nious doctrine,  that,  since  a  husband 
ought  to  bury  his  wife  and  lawful 
children,  who  are  the  personte  conjuncUr. 
with  him,  as  a  matter  of  personal  ben- 
eiii  to  himself,  the  wife  should  do  the 
Bame  by  her  husband,  as  a  benefit  and 
conitori  to  herself;  and  therefore  that 
the  case  comes  within  the  rule  of  law 
which  makes  a  contract  good  where  the 
infant  is  a  gainer  by  it.  Chappie  v. 
Cooper,  13  M.  &  W.  252. 

A  woman  who  has  paid  the  expenses 

oi   ber  late  husband's  final  illness  and 


funeral  from  her  separate  property, 
may  charge  the  same  against  his  es- 
tate. McNally  v.  Weld,  30  Minn.  209. 
See  statutory  liability  where  the  wife 
receives  the  entire  estate,  iu  Green  v. 
Weever,  78  Ind.  494. 

In  Pennsylvania,  where  married 
women  are  liable  on  their  contracts  for 
"  articles  necessary  for  the  support  of 
the  family,"  a  married  woman  is  held 
liable  ou  her  contract  for  the  funeral 
expenses  of  a  mother  who  lived  in  the 
household  and  died  without  means. 
Bair  v.  Robinson,  108  Penn.  St.  247 ; 
Parent  and  Child,  post. 

2  See  §  144  a. 

3  Larson  v.  Chase,  47  Minn.  307. 
Here  the  widow  was  allowed  to  sue 
others  in  damages  for  mutilating  and 
dissecting  the  husband's  corpse  without 
her  permission.  And  see  Haekett  v. 
Ilackett  (1894),  R.   I.,  where   her  right 

of  interment  is  stated  with  slight  quali- 
fications. 


320 


CHAP.  XVI.]  SURVIVING    WIFE'S   RIGHTS. 


husband,  and  the  husband  dies  suddenly,  and  in  point  of  fact 
before  certain  purchases  were  made  on  his  credit,  is  his  estate 
liable,  or  is  his  widow ;  or  must  the  creditor  bear  the  loss  ? 
The  general  rule  undoubtedly  is  that  the  authority  of  an 
attorney  or  agent  expires  with  the  principal.  A  dead  man 
can  have  no  one  acting  by  his  name  and  authority.  And 
since  the  wife  contracts  only  as  her  husband's  agent  at  the 
common  law,  her  case  would  seem  to  fall  within  the  general 
doctrine.1 

The  modern  inclination  is  clearly  to  relax  somewhat  the 
rigid  rule  of  the  common  law  of  agency,  and  to  favor  the 
Roman  doctrine,  which  binds  the  principal  or  his  estate  in 
respect  to  acts  done  in  good  faith  by  his  agent  before  notice  of 
revocation.2 

§  213.  The  Widow's  Dower.  —  Dower  and  curtesy  had  not, 


1  Such  in  fact  was  the  ruling  of  the 
court  in  Blades  v.  Free,  where  a  man 
who  had  some  years  cohabited  with  a 
woman,  who  passed  as  his  wife,  left  her 
and  her  family  in  England,  and  weut 
into  foreign  parts,  where  he  died. 
Here  it  was  held  that  the  executor  was 
not  bound  to  pay  for  necessaries  sup- 
plied to  her  after  his  death,  although 
before  information  of  the  event  had 
reached  her.  In  this  case,  however, 
there  was  only  a  quasi  widow,  and 
perhaps  the  court  felt  the  stigma  of  an 
illicit  cohabitation.  9  B.  &  Cr.  167  ;  4 
Man.  &  Ry.  282.  But  the  precedent 
proved  a  stumbling-block  in  the  next 
case  of  Smout  v.  Ilberry,  10  M.  &  W. 
1.  A  man  who  had  been  in  the  habit 
of  dealing  with  a  butcher  for  meat 
supplied  to  his  house  went  abroad  ; 
and  his  wife,  who  remained  at  home, 
continued  the  employment  of  the 
butcher.  Here  it  was  held  that  she 
was  not  personally  liable  for  meat  sup- 
plied after  her  husband's  death,  and 
purchased  by  her  in  good  faith,  sup- 
posing him  to  be  still  alive.  The  prin- 
ciple of  the  latter  case  seems  to  have 
been  that,  although  the  authority  had 
expired,  yet  the  ajrent  was  not  in  fault, 
nor  in  the  commission  of  any  fraud ; 
21 


that  the  revocation  occurred  by  act  of 
God.  But  the  loss  had  to  fall  some- 
where ;  so  the  court  put  it  upon  the 
butcher.  These  seem  to  be  the  only 
cases  of  importance  on  this  subject  in 
England;  and  we  find  none  in  this 
country  to  shed  further  light. 

2  Story,  Agency,  §§  488,  497,  and 
notes,  in  9th  edition.  See  Bradford, 
Surrogate  of  New  York  City,  in  Gino 
cliio  v.  Porcella,  3  Bradf.  Sur.  277,  in 
which  this  subject  is  ably  discussed, 
though  the  ca^e  in  question,  upon  a 
close  examination,  appears  to  have  de- 
cided little  or  nothing.  This  able 
lawyer  evidently  leans  against  the  au- 
thority of  Blades  v.  Free,  though  he 
expresses  himself  very  guardedly.  See 
to  the  same  purport,  Terry's  Appeal, 
55  Penn.  St.  344,  where  the  wife  had 
been  deserted  by  her  husband ;  also 
Schouler,  Hus.  &  Wife,  §  438.  And 
see  Stinson  v.  Prescott,  1 5  Gray,  335  ; 
Sterling  v.  Potts,  2  South.  773;  Smith 
v.  Allen,  1  Lans.  101  ;  Carter  v.  Wann, 
45  Ala.  343  ;  59  Vt.  499. 

As  to  rights  of  the  widow  affecting 
settlement  of  her  husband's  estate,  see 
further,  Schouler,  Hus.  &  Wife,  §§440- 
442. 

321 


§  213  THE   DOMESTIC   RELATIONS.  [PART   IL 

perhaps,  the  same  origin  :  they  certainly  had  not,  in  all  respects, 
the  same  incidents  ;  but  both  rights  were  known  in  England 
from  a  very  early  period,  and  both  have  remained  with  very 
little  change  down  to  a  recent  date  in  England  and  America. 
Dower  gave  the  widow  only  a  life  interest  to  the  extent  of  one 
third,  while  curtesy  gave  the  surviving  husband  the  full  life 
interest.  .But  on  the  other  hand,  dower  became  absolute  in  the 
widow  when  she  outlived  her  husband,  while  curtesy,  as  we 
have  seen,  never  attached  at  all  unless  the  husband  outlived 
his  wife  and  was  fortunate  enough  to  have  had  a  child  by  her 
besides.  So  that  in  these  respects  the  rights  of  husband  and 
wife,  on  the  whole,  if  not  equivalent,  were  nearly  so.  And  as 
the  reader  may  have  already  inferred,  the  general  rule  as  to 
descent  of  real  estate  has  been  that,  subject  to  the  widow's 
dower,  the  lands  of  a  husband  descend  to  his  own  heirs ;  while, 
subject  to  the  surviving  husband's  curtesy,  the  lands  of  a  wife 
descend  to  her  own  heirs ;  our  policy  being  to  preserve  real 
estate  in  the  family,  so  to  speak,  of  the  respective  parties 
to  a  marriage,  in  default  of  issue  capable  of  inheriting  from 
both.1 

Dower  is  to  be  defined  as  that  provision  which  the  law  makes 
for  a  widow  out  of  the  lands  or  tenements  of  her  husband.  In 
its  technical  sense  the  word  relates  to  real  estate  only.  It  is 
said  to  be  given  for  her  support  and  the  nurture  of  her  children ; 
but  it  applies,  in  fact,  whenever  she  is  the  survivor,  without 
reference  to  her  actual  circumstances  as  to  means  of  support  or 
the  burden  of  a  family.  Dower  extends  to  all  estates  of  inheri- 
tance which  the  husband  has  held  at  any  period  of  the  cover- 
ture in  his  own  right,  and  which  any  issue  of  hers  might,  if 
1m  iiu,  possibly  inherit.2 

Tlif  tbree  essentials  of  dower  nearly  correspond  with  those  of 
curtly  ;  birth  of  issue,  as  we  have  said,  not  being  requisite  as 
in  the  former  case,  and  the  favor  to  productive  marriages  being 
waived  on  her  behalf.  They  are  marriage,  seisin  of  the  hus- 
band, and    bis    death.       lint  a   careful  comparison  of  the  two 

'  See  l  Washb.  Real  Prop.  127,  147;  -  Co.  Litt.  30a;  2  Rl.  Com.  130;  1 
Jenke  v.  Langdon,  21  Ohio  St.  362.  Washb.  Real  Prop.  14G. 

322 


CHAP.  XVI.]  SURVIVING    WIFE'S   RIGHTS.  §  214 

estates  at  the  old  law  shows  some  inequalities.1  A  wife  or 
widow  is  not  to  be  deprived  of  her  dower  as  a  rule  otherwise 
than  by  her  own  voluntary  act.2 

§  214.  Homestead  Rights.  —  The  homestead  may  properly  be 
considered  in  connection  with  dower ;  for  although  this  right  is 
not  strictly  personal  to  married  women,  inasmuch  as  it  exists 
for  the  benefit  of  both  wife  and  children,  if  not  for  the  husband 
besides,  while  he  lives,  it  is  an  incumbrance  upon  the  real 
estate  of  the  husband  which  is  generally  released  by  the  wife 
in  connection  with  her  dower.  The  homestead  system  is  of 
recent  origin,  is  peculiar  to  our  American  States,  and  exists  for 
protection  mainly  against  the  husband's  creditors.  The  policy 
on  which  it  rests  —  by  no  means  a  new  one  in  our  legislation  — 
is  that  a  householder  with  a  family  shall  always  have  a' place 
of  shelter  where  legal  process  cannot  reach  him.  While  open 
to  some  serious  objections  as  concerns  the  rights  of  creditors, 
the  homestead  system  is  to  be  warmly  commended  in  respect  of 
the  encouragement  it  affords  to  agriculture,  and  still  more  as 
offering  rewards  for  domestic  fidelity.3 

1  As   to   dower,   see    in    general,    1  the  rule  of  various  other  States  as  to 

Washb.  Real  Prop.  154  et  seq. ;  Schou-  equitable  estates  at  least,  like  an  equity 

ler,  Hus.  &  Wife,  §§  445-455.  of  redemption.     In  several  States   her 

While  the  law  of   dower  has  been  interest  is  treated  as  something  for  the 

gradually  fading  out  of  sight  in  Eng-  benefit  of  herself  and  children  jointly. 

land,  since  the  English  Dower  Act,  3  In  others,  the  "thirds"  are  dispensed 

&  4  Will.  IV  c.  105,  limiting  the  inter-  with,  and  a  different  rate  is  fixed.    And 

est,  it  attains  its  fuller  development  in  finally,  the   State  of  Indiana  has  set  a 

this  country.     Curiously  enough,  most  good  example,  which  other  States  have 

of  the  mud ern  cases  on  this  subject  are  followed,    of   abolishing    both    curtesy 

American.      Our    local    statutes    have  and  dower,  and  substituting,  in  behalf 

very    generally    favored    the    widow's  of  husband  and  wife,  an  interest  in  fee 

rights,  and  unless  she  has   joined   her  in  one  another's  real  estate,  remaining 

husband   in  his  conveyances  during  his  at  decease,  on  principles  analogous  to 

life,  or  statutes  restrain  her  rights,  she  the  descent  and  distribution  of  personal 

may  usually  assert  the  privilege  at  his  property  of    intestates  ;    thus   placing 

death.      But  dower  is   found   a  great  both   sexes   on   the  mutual  footing  of 

inconvenience    in    an    age    when   real  justice,  and  treating  lands  and  personal 

estate  passes  from  hand  to  hand  as  an  estate  as  subject  to  corresponding  rules, 

article  of  commercial  traffic ;  and  legis-  Schouler,    Hus.    &   Wife,    §   455,    and 

latures  show  some   disposition   to   get  appendix. 

rid  of  it  entirely,  together  with  curtesy.  2  See   Sloan   v.   Williams,    138    111. 

In    New    York    the   widow   can    only  43. 

claim  her  dower  out  of  lands  of  which  8  See   1  Washb.   Real  Prop  4th  ed. 

her  husband  died  seised  ;  and  such  is  342  et  seq.,  where  this  system  is  detailed. 

323  " 


§  215  THE   DOMESTIC    RELATIONS.  [PART   II. 

•  §  214  a.  Simultaneous  Death  of  Husband  and  Wife  ;  Owner- 
ship of  Fund.  —  Where  husband  and  wife  die  simultaneously, 
or  nearly  so,  and  their  personalty  is  found  in  one  receptacle,  to 
which  both  had  access,  and  nothing  shows  how  much  each  con- 
tributed to  the  fund,  the  modern  inclination  is  to  consider  it  as 
owned  by  them  in  equal  shares.1 


CHAPTER  XVII. 

SEPARATION   AND   DIVORCE. 


§2,15.  Deed  of  Separation;  General  Doctrine.  —  Separation 
is  that  anomalous  condition  of  a  married  pair  which  involves  a 
cessation  of  domestic  intercourse,  while  the  impediments  of 
marriage  continue.  Either  from  choice  or  necessity,  as  the  case 
may  be,  they  throw  aside  the  strong  safeguards  of  a  home  and 
mutual  companionship ;  they  forfeit  their  most  solemn  obliga- 
tions to  protect,  love,  and  cherish  through  life ;  they  continue 
united  in  form  and  divided  in  fact.  The  spirit  of  the  contract, 
all  that  dignifies  and  ennobles  it,  is  gone  ;  but  the  letter  remains. 
Both  parties  submit,  in  some  degree,  at  least,  to  the  degradation 
of  public  scandal ;  they  are  cast  loose  upon  the  world  without 
the  right  to  love  and  be  loved  again ;  the  thought  of  kindling 
fresh  flames  at  the  altar  of  domestic  happiness  is  criminal ;  and 
deprived  of  the  comfort  and  support  of  one  another,  finding  in 
society  at  best  but  timid  sympathy  and  consolation,  the  moral 
character  must  be  strong,  and  doubly  so  must  be  that  of  the 
wile,  that  each  may  buffet  with  success  the  tide  which  bears 
onward  to  destruction.  Such  a  state  of  things  no  public  policy 
can  safely  favor ;  but  the  law  sometimes  permits  it,  if  for  no 
othei  reason  than  that  an  adequate  remedy  is  wanting  to  check 
or  to  prevent  the  evil ;  and  hence  it  may  be  thought  more 
expedient  for  the  courts  to  enforce  such  mutual  contracts  of  the 
nnhappy  pair  as  mitigate  their  troubles,  than  to  dabble  in  a 
domestic  quarrel  and  try  to  compel  unwilling  companionships. 

1  Bergen  v.  Van  Liew,  36  N.  J.  Eq.  637. 

824 


CHAP.  XVII.]         SEPARATION   AND   DIVORCE.  §  216 

This  we  conceive  to  be  the  rightful  position  of  the  English 
and  American  equity  courts  whenever  they  see  fit  to  enforce 
separation  agreements.  Some,  to  be  sure,  are  disposed  to  carry 
the  argument  further.  Thus,  recent  English  writers  of  much 
repute  refer  to  the  fact  that  divorces  from  bed  and  board  are 
often  granted  in  that  country,  and  hence  conclude  that  it  is 
reasonable  for  the  married  parties  themselves  to  compromise 
litigation,  save  court  fees,  and  avoid  public  notoriety,  and  there- 
fore to  agree  to  live  apart,  just  as  though  the  court  had  entered 
a  decree  for  that  purpose.1  But  this  argument  proves  too 
much  ;  for  if  marriage  and  divorce  are  matters  for  private  com- 
promise, like  ordinary  contracts,  why  should  not  the  discon- 
tented pair,  upon  just  cause,  agree  to  unloose  the  yoke  altogether  ? 
Why  should  they  not  sometimes  obtain  divorce  from  the  bonds 
of  matrimony  by  collusion  and  default,  and  thus  take  the  readi- 
est means  of  avoiding  scandalous  and  expensive  suits  ?  One 
shrinks  from  such  conclusions.  In  fact,  divorce  laws  do  not 
belong  to  the  parties  themselves,  but  to  the  public ;  government 
guards  the  sanctity  of  marriage,  just  as  it  demands  the  duty  of 
allegiance ;  only  that  perhaps  its  policy  cannot  be  enforced  in 
the  one  case  as  well  as  the  other.  It  is  because  marriage  is  not 
on  the  footing  of  ordinary  contracts,  that  husband  and  wife 
cannot,  on  principle,  compromise,  arbitrate,  or  modify  their 
relationship  at  pleasure.  Furthermore,  the  above  argument 
would  seem  to  suggest  that  where  a  complete  divorce,  instead 
of  divorce  from  bed  and  board,  is  attainable,  deeds  of  separa- 
tion would  not  hold  good ;  nor,  again,  where  parties  separate 
for  causes  which  do  not  even  justify  divorce  from  bed  and 
board ;  neither  of  which  positions  is  sustained  by  the  actual 
decisions. 

§216.  The  Same  Subject;  English  Rule. — Lord  Eldon  was 
of  the  opinion  that  a  settlement  by  way  of  separate  mainte- 
nance, on  a  voluntary  separation  of  husband  and  wife,  was 
against  the  policy  of  the  law  and  void.  The  ground  of  his 
opinion  was  that  such  settlements,  creating  a  separate  mainte- 
nance by  voluntary  agreement  between  husband  and  wife,  were 

1  Macq.  Hus.  &  Wife,  324  et  seq.  See  also  Jacob,  n.,  to  Roper,  Hus.  & 
Wife,  277 ;  Peachey,  Mar.  Settl.  647. 

325 


§  216  THE   DOMESTIC   RELATIONS.  [PART  II. 

in  their  consequences  destructive  to  the  indissoluble  nature  and 
the  sanctity  of  the  marriage  contract ;  and  he  considered  the 
question  to  be  the  gravest  and  most  momentous  to  the  public 
interest  that  could  fall  under  discussion  in  a  court  of  justice.1 
But  in  England  final  and  complete  dissolution  of  marriage  was, 
until  quite  recently,  attainable  only  by  act  of  Parliament.  And 
this  method  of  procedure  was  found  so  difficult,  expensive,  and 
uncertain,  that  parties  who  could  not  live  peaceably  together 
were  led  to  consider  some  lesser  means  of  mitigating  their  mis- 
fortune. To  be  sure  the  ecclesiastical  courts  awarded  sentences 
of  divorce  from  bed  and  board ;  but  these  merely  discharged  the 
parties  from  the  duty  of  cohabitation,  permitting  them  to  come 
together  afterwards  if  they  should  so  choose ;  and  therefore,  as 
a  writer  observes,  these  sentences  "  did  not  often,  it  must  be 
owned,  repay  the  pains  bestowed  in  obtaining  them."2  The 
English  ecclesiastical  courts  steadily  refused,  moreover,  to  recog- 
nize separation  deeds.3  Such  a  policy  seems,  however,  to  have 
turned  husband  and  wife  to  their  own  devices  for  effecting  the 
same  result,  with  less  delay  and  annoyance,  and  in  order  to 
adjust  more  completely  those  property  arrangements  which 
never  could  be  forgotten  in  their  misery.  Deeds  of  settlement, 
trusts,  and  the  intervention  of  the  equity  courts  readily  fur- 
nished a  plan  of  operations  ;  and  the  ubiquitous  conveyancer 
appeared  once  more  upon  the  stage  to  open  the  way,  through 
subtle  refinements,  to  freedom  for  discontented  couples,  and 
emolument  for  himself. 

After  a  prolonged  struggle,  and  in  spite  of  public  policy,  it  is 
therefore  fully  established  at  length  in  England,  as  a  doctrine 
of  equity,  that  deeds  of  separation  may  and  must,  if  properly 
framed,  be  carried  into  execution  by  the  courts.4  They  may 
be  enforced  in  the  common-law  courts  indirectly  through  the 

i  St.  John  v.  St.  John,  11  Ves.  530  ;  3  1  Bish.  Mar.  &  Div.  5th  ed.  §  634; 

Bee     Mortimer    v.    Mortimer,    2     Hag.  Mortimer   v.    Mortimer,   2    Mac;.    Con. 

Consist.  Rep.  318;  Legard  v.  Johnson,  310;  Smith  v.  Smith,  4  Hag.  Ec.  609. 
■t    Ves.    •i.->2 ;    Mercein    v.    People,   2.~>  4  Wilson   ?>.   Wilson,    1  ■  Ho.  Lords 

Wend.  77.  Cas.  538;  5  Ho.  Lords  Cas.  59  ;  Peachey, 

2  Macq.   Hns    &  Wife,  326.     See  Mar.  Settl.  620,  and  cases  cited ,  Macq. 

.  Hope,  8  Jur.  v.  B.  456;  s.  o  26  llus.  &  Wife,  329. 
L   .1     I..|.   425 ;    Peachey,    Mar.  Settl. 
620;  II.  v.  W.,3  Kay  &  Johns.  386, 387. 

326 


CHAP.  XVII.]         SEPARATION   AND   DIVORCE.  §  217 

medium  of  covenants  which  are  entered  into  between  the  hus- 
band and  trustees ;  and  in  equity  specific  performance  will  be 
decreed  where  the  stipulations  are  not  contrary  to  law  nor  in 
contravention  of  public  policy.1  An  agreement  between  hus- 
band and  wife  to  live  apart  is,  perhaps,  void  as  against  public 
policy ;  but  the  husband's  covenant  with  a  third  party  may  be 
valid  and  binding,  although  it  originates  iu  this  unauthorized 
state  of  separation  and  relates  directly  to  it.2 

It  may  seem  strange  that  such  an  auxiliary  agreement  should 
be  enforced,  while  the  principal  agreement  is  held  contrary  to 
the  spirit  and  policy  of  the  law.  Lord  Eldon,  who  strongly 
opposed  the  whole  doctrine  on  principle,  said  that  if  the  ques- 
tion were  res  Integra,  untouched  by  dictum  or  decision,  he  would 
not  have  permitted  such  a  covenant  to  be  the  foundation  of  a 
suit^in  equity.3  Sir  William  Grant  appears  to  have  been  the 
first  to  call  attention  to  the  inconsistency  of  the  courts  in  this 
respect;  and  his  remark  has  come  down  through  the  later 
judges.4  Lord  Eosslyn,  however,  hit  upon  the  explanation  that 
an  agreement  for  a  separate  provision  between  the  husband  and 
wife  alone  is  void,  merely  from  the  general  incapacity  of  the 
wife  to  contract ; 5  an  explanation  which,  we  submit,  is  quite 
unsatisfactory.  The  true  reason  for  the  anomalous  distinction 
appears  to  be  simply  this :  that  contracts  for  separation  are  in 
general  void  as  against  public  policy,  but  that  the  courts  saw 
fit  to  let  in  exceptions  so  far  as  to  enforce  fair  covenants.6 

§  217.  The  Same  Subject;  American  Rule.  —  Deeds  of  sepa- 
ration were  never  very  common  in  the  United  States.  And 
there  are  at  least  three  very  good  reasons  wThy  they  should  be 
at  this  day  less  encouraged  than  in  England.  The  first  is  that 
our  legislation  strongly  favors  the  separate  control  of  married 

1  Vansittart  v.  Vansittart,  2  De  Gex  5  Legard  v.  Johnson,  3  Ves.  Jr.  352. 
&  Jones,  249.                                                   See  2  Bright,  Hus.  &  Wife,  306,  n.  by 

2  Worrall   v.   Jacob,    3    Mer.    255 ;     Jacob. 

Peachey,   Mar.  Settl.  621;    Sanders  v.  6  Under  English  legislation,  not  only 

Rodney,   16   Beav.  211;    Warrender  v.  are  covenants  in   a  separation  deed  en- 

Warrender,  2  CI.  &  Fin.  488.  forced,  but  the  court  has  power  to  vary 

3  Westmeath  v.  Westmeath,  Jac.  them  after  a  dissolution  of  the  mar- 
126;    2  Kent,  Com.  176.  riage.     9  P.  D.  76;    Fearon  v.  Ayles- 

i  See  Jones  v.  Waite,  5  Bing.  361  ;     ford,  12  Q.  B.  D.  539. 
Framptou  v.  Frampton,  4  Beav.  293. 

327 


§  217  THE   DOMESTIC   RELATIONS.  [PART  II. 

women  as  to  their  own  acquisitions,  without  the  intervention  of 
trustees  and  formal  deeds  of  settlement,  thus  dispensing  with 
the  necessity  of  intricate  property  arrangements.  The  second 
is  that  equity,  ecclesiastical,  and  common-law  functions  are 
usually  blended  in  the  same  courts  of  final  appeal,  so  that  a 
State  is  at  liberty  to  adopt  the  precedents  of  the  ecclesiastical 
rather  than  the  modern  equity  tribunals  of  England  for  its 
guidance  ;  while  an  American  court,  on  the  other  hand,  could 
not  admit  clearly  the  right  of  parties  to  declare  terms  of  private 
separation,  without  bringing  confusion  and  uncertainty  upon 
its  own  divorce  and  matrimonial  jurisdiction.  The  third  is  that 
sentences  of  divorce  have  been  procured  in  most  of  the  United 
States  with  great  ease,  moderate  expense,  and  little  publicity. 

Early  in  this  century,  Chancellor  Kent  summed  up  authori- 
ties which  showed  that  a  private  separation  was  an  illegal  con- 
tract, in  these  emphatic  words :  "  Nothing  can  be  clearer  or 
more  sound  than  this  conjugal  doctrine."  1  Contrary  to  what 
until  quite  lately  was  the  rule  in  England,  many  of  our  States 
have  never  directly  sanctioned  separation  deeds  at  all.  And 
a  recent  North  Carolina  case  distinctly  maintains  what  ought 
to  and  may  yet  become  the  pronounced  American  doctrine,  — 
that  separation  deeds  are  void  as  against  law  and  public  policy.2 

Nevertheless  there  are  individual  American  cases,  and  nu- 
merous ones,  where  separation  deeds  have  been  recognized  so 
far  as  to  permit,  and  sometimes  to  require,  parties  to  perform 
such  marital  duties  as  were  incumbent  upon  them,  notwith- 
standing the  fact  of  separation.3  And  the  text- writer  must  still 
further  concede,  however  reluctantly,  that  out  of  a  regard  for 
permitting  married  parties,  who  are  resolved  upon  separation 

1   ■>  Kent,  Com.  177  n.  bin  v.  Patterson,  16  Md.  179  ;  Griffin  v. 

-  Collins  v.  Collins,   1    Thill.  N.  C.  Banks,  37  N.  Y.  621  ;  Joyce  v.  McAvoy, 

Eq.  153.     An  agreement  between  1ms-  31  Cal.  273;  Walker  v.Stringfellow,  30 

band  and  wife,  having  for  its  object  a  Tex.  570;    Hitner's  Appeal,  54  Penn. 

dissolution  of  the  marriage,  is  contrary  St.  110;   Loud   '-.   Loud,  4    Hush,  45.'5 ; 

i'.  sound  policy,  and  a  note  and  mort-  Dutton  v.  Duttou,  30  Ind.  452 ;  McKee 

gage  executed  in  pursuance  thereof  is  v.  Reynolds,  '26   Iowa,  57s ;  Walker  v. 

void.     Cross  v.  Cross,  58  N.  II.  .'i7:t.  Beal,  3  Cliff.  155;    Dupre  v.  Rein,  56 

;  I  Bishop, Mar.  &  Div. §  639 et  seq. ;  How,    (N.   V)    Prac.   228;   Doming  v. 

Bchouler,  Hub.  &  Wiie,  §  473;  Good-  Williams,  26  Conn.  226;  Chapman  v. 

rich  v.  Bryant,  »  Sneed,  .'525  ;  McCub-  Gray,  8  Ga.  341. 
328 


CHAP.  XVII.]         SEPARATION   AND   DIVORCE.  §  218 

without  a  divorce,  to  arrange  decently  for  the  maintenance  of 
wife  and  offspring,  and  for  a  just  mutual  disposition  of  property 
rights,  our  courts  are  in  the  latest  cases  following  the  English 
lead  so  as  to  sustain  the  enforcement  of  whatever  covenants 
might  be  pronounced  fair  in  themselves  on  behalf  of  parties 
separated  or  about  to  separate.  Some  of  these  cases  sustain 
such  covenants  upon  a  suggestion  that,  separation  being  inevi- 
table, they  are  prepared  to  make  the  best  of  it,  not  conceding 
the  support  of  contracts  calculated  to  favor  a  separation  which 
has  not  yet  taken  place  or  been  fully  decided  upon.1  An  un- 
satisfactory distinction  truly,  nor  one  likely  to  afford  a  rest- 
ing-place ;  as  though  this  half  countenance  were  not  calculated 
of  itself  to  favor  future  separation  ;  and  yet  a  legal  distinc- 
tion, since  it  leaves  the  bickering  parties  where  they  have 
placed  themselves.  It  seems  to  stop  short  of  enforcing  specific 
performance  of  a  written  agreement  for  a  separation  deed,  and 
to  refuse  direct  countenance  to  a  stipulation  that  husband  and 
wife  shall  live  apart  in  time  to  come.2 

§  218.  The  Same  Subject;  -what  Covenants  are  upheld.  —  An 
indenture  with  the  intervention  of  a  trustee  or  trustees  is  in 
this  country  held  the  safer  sort  of  instrument  where  separation 
is  contemplated,  and  such  are  the  deeds  usually  drawn  and  con- 
strued by  our  courts.  It  is  desirable  that  the  husband  and 
trustee  mutually  covenant  together.  But  so  considerably  are 
husband  and  wife  now  emancipated  from  the  need  of  inter- 
mediate parties,  that  a  fair  transaction  of  the  present  nature 
has  been  sometimes  sustained  in  certain  States,  where  no  trus- 
tee at  all  was  interposed.3  This  cannot  be  affirmed  of  all,  nor 
of  most  of  the   United  States ; 4  nor  can  such  a  contract  ever 

1  Fox  v.  Davis,  113  Mass.  255,  per  116  N.  Y.  635.  Contra,  Scott's  Estate, 
Endicott,  J.,  and  cases  cited;  Hutton  v.  147  Penn.  St.  102,  where,  however,  the 
Hutton,  3  Parr,  100;  Randall  v.  Ran-    application  accords  with  the  text. 

dall,  37  Mich.  563,  per  Cooley,  C.  J.,         3  In  Randall  v.  Randall,  37  Mich. 

Garver   v.    Miller,    16   Ohio    St.    527;  563,   a  deed   passed  from    husband   to 

Robertson  v.  Robertson,  25  Iowa,  350 ;  wife,  whose   actual   consideration    was 

Dutton  v.  Dutton,  30  Ind.  452  ;  Carpen-  relinquishment  of  the  right  to  a  support 

ter  v.  Osborn,  102  N.  Y.  552.  on   her  part.     And  see  Commonwealth 

2  See  this  distinction  asserted  in  the  v.  Richards,  131  Penn.  St.  209.;  124 
latest  cases.     Aspinwall  v.  Aspinwall,  N.  Y.  37. 

49  N.  J.  Eq.  302;  Galusha  v.  Galusha,         4  Simpson  v.  Simpson,  4  Dana,  140; 

329 


§  218  THE   DOMESTIC   RELATIONS.  [PART   II. 

prevail  against  the  wife's  interests  where  she,  in  such  nego- 
tiation and  arrangements,  does  not  appear  to  have  acted  with 
perfect  freedom  and  a  perfect  understanding  of  her  individual 
rights.1  Sometimes  an  agreement  or  bond  to  separate  is  exe- 
cuted by  husband  and  wife,  accompanied  by  the  conveyance  of 
property  to  a  trustee  for  the  use  of  the  wife ;  which  latter, 
however,  is  the  instrument  the  court  construes  and  upholds.2 

Inasmuch,  then,  as  separation  deeds  are  not  enforced  either 
in  England  or  the  United  States,  at  the  present  day,  without 
regard  to  the  policy  of  stipulations  or  covenants  in  question, 
the  limit  of  judicial  support  may  be  drawn  at  the  support  of 
provisions  which,  supposing  separation  inevitable,  carry  the  ful- 
filment of  conjugal  duties  and  rights  after  a  reasonable  and 
becoming  manner  into  that  relation.  Fur  equity  can  only 
sanction  what  is  fair  and  beneficial;  and  here  cognizance  is 
taken,  not  of  the  separation,  but  of  circumstances  and  a  settle- 
ment attending  that  state.  The  covenant  or  stipulation  itself, 
the  whole  settlement,  must  be  free  from  exception  and  such  as 
equity  might,  under  other  instances  of  its  jurisdiction,  have 
sustained.3  Where,  therefore,  the  provision  is  for  the  benefit  of 
wife  and  children,  or  for  the  wife,  as  in  providing  suitable  main- 
tenance during  the  separation,  such  a  covenant  or  stipulation  is 
to  be  highly  favored.4  Where  an  equitable  and  suitable  divi- 
sion is  made  of  the  property  whose  benefits  have  been  enjoyed 
during  the  coverture,  this,  too,  may  well  be  upheld.5  It  is  rea- 
sonable and  binding  for  the  separating  wife  to  release  all  claims 
upon  the  husband's  estate  as  surviving  spouse,  in  consideration 
of  other  fair  provisions  for  her  benefit  and  support.6  The  spouse 
who  covenants  to  deliver  up  certain  property  to  the  other  should 
make  that  covenant  as  advantageous  to  the  latter  as  was  rea- 


Carter   v.   Carter,    14    Sm.  &   M.    50;  Walker  ?•.  Walker,   9  Wall.   743;    49 

Stephenson   v,  Osborne,  41   Miss.  119;  N.  .7.  Eq.302;  116  N.  Y.  635;  Roll  v. 

McKennan  v.  Phillips,  6  Whart.  571.  Roll,  51  Minn.  353;  118  N.  Y.  7. 

1  Switzer  v.  Switzer,  26  Gratt.  574.  s  Cooley,  C.  J.,  in  Randall  v.  Ran- 

2  Keys    r.    Keys,    n    Heisk.    425;  dall,  37  Mich.  568. 

Dixon  v.  Dixon,  28  N*.  .7.  Eq.  816.  o  Scott's  Estate,  147  Penn.  St.  102 

»  Switzer  v.  Switzer,  26  Gratt.  574.  (especially   if  she  has   means  of  her 

■      Davis,    118    Mass.    255;  own) ;  Carpenter  v.  Osborn,  102  N.  Y. 

Bar  lal]    i      Randall,    :\1    Mich.    563;  552. 


>»■) 


30 


CHAP.  XVII.]         SEPARATION    AND   DIVORCE. 


§218 


sonably  intended.1  It  is  fair  that  a  husband's  covenant  or 
stipulation  of  proper  allowance  for  the  wife's  support  should 
be  accompanied  by  the  trustee's  covenant  or  stipulation  of  in- 
demnity against  his  wife's  debts.2  In  respect  of  directly  com- 
pelling the  married  parties  to  live  apart  under  their  agreement, 
separation  deeds  cannot  be  pronounced  good  upon  any  just  con- 
ception of  public  policy  and  the  divorce  laws;3  and  espeeially 
must  this  rule  hold  true  where  the  compulsion  sought  is  under 
circumstances  of  separation  not  justifying  a  divorce.  No  relief 
will  be  afforded  by  equitable  interference  against  the  executed 
provisions.4 

The  potential  mingling  of  legal  and  illegal  conditions  in  these 
agreements,  with  the  view  of  entering  upon  a  status  which  of 
itself  is  inconsistent  with  a  due  fulfilment  of  the  moral  and 
legal  duties  of  matrimony,  occasions  judicial  confusion,  which 
is  more  likely  to  increase  than  decrease  while  separation  deeds 
are  judicially  recognized.  But  it  is  recently  held  in  England 
that  if  some  covenants  in  such  a  deed  are  legal  and  proper, 
while  others  are  not,  the  former  are  enforceable  by  themselves.5 


1  Thus  it  is  held  that  a  husband  has 
no  right  to  retain  copies  of  his  wife's 
journals  and  diaries,  which  he,  under  a 
separation  deed,  has  covenanted  to  de- 
liver up.  Hamilton  v.  Hector,  L.  R. 
13  Eq.  511.  And  see  McAllister  v. 
McAllister,  10  Heisk.  345  ;  §  160,  note. 

2  Dupre  v.  Rein,  56  How.  (N.  Y.) 
Prac.  228  ;  Harshberger  v.  Alger,  31 
Gratt.  52 ;  Reed  v.  Beazley,  1  Blackf. 
97.  Such  a  provision  of  indemnity, 
though  usual,  is  not  essential.  Smith 
v.  Knowles,  2  Grant,  413. 

3  Warrender  v.  Warrender,  2  CI. 
&  F.  488,  527,  per  Lord  Brougham; 
Brown  v.  Peck,  1  Eden,  140  ;  McCrock- 
lin  v.  McCrocklin,  2  B.  Monr.  370; 
McKennan  v.  Phillips,  6  Whart.  571, 
per  Gibson,  C.  J. 

Whether  articles  of  separation  can 
debar  one  from  procuring  a  divorce 
for  cause,  see  Schouler,  Hus.  &  Wife, 
§§  476,  482;  Moore  v.  Moore,  12  P.  D. 
193.  If  separation  never  took  place, 
the  deed  is  void.     Hamilton  v.  Hector, 


L.  R.  13  Eq.  511.  As  to  reconciliation 
after  separation,  see  Schouler,  Hus.  & 
Wife,  §  478. 

4  Tallinger  v.  Mandeville,  113  N.  Y. 
427. 

5  Hamilton  v.  Hector,  L.  R.  13  Eq. 
511.  There  is  no  implied  covenant 
that  the  wife  shall  remain  chaste  ;  such 
covenants  should  be  stated.  Sweet  v. 
Sweet  (1894),  W.  N.  181.  And  see 
153  Mass.  17,  as  to  husband. 

While  in  many  parts  of  the  United 
States  is  seen  an  increasing  tendency 
to  adopt  the  English  theory  concerning 
separation  covenants,  with,  however, 
more  looseness  as  to  the  form  such 
transactions  shall  take,  the  latest  Eng- 
lish cases  quite  transcend  the  distinc- 
tions behind  which  our  courts  take 
refuge,  and  the  earlier  dicta  of  their 
own  Eldon  and  Brougham.  Divorce 
being  there  regarded  with  less  favor 
than  in  the  United  States,  notwith- 
standing the  late  statutes  ou  the  sub- 
ject, trust  deeds,  and  voluntary  separa 

331 


§218 


THE   DOMESTIC    RELATIONS. 


[PART   II. 


At  all  events,  reconciliation  and  a  renewal  of  cohabitation  will 
put  an  end  to  all  provisions  of  a  separation  deed  whose  scope 
relates  to  a  state  of  continuous  separation  merely,  and  the  rights 
and  interests  of  each  in  the  other's  property  will  be  resumed  by 
inference  as  of  the  usual  marital  status.1     Courts  have  shown 


tion,  are,  upon  mature  experience, 
treated  as,  ou  the  whole,  the  more 
decent  and  respectable  method  for  un- 
happy couples  to  adopt,  than  that  some- 
what novel  recourse  to  courts,  winch 
brings  a  scandalous  cause  into  public 
controversy.  See  Peachey,  Mar.  Settl. 
64",  648.  English  policy,  indeed,  in 
its  inception  is  quite  different  from 
American  in  this  regard,  a  fact  which 
American  jurists  should  bear  well  in 
mind.  And  under  legislation  of  date 
much  later  than  the  divorce  .acts  which 
were  copied  from  the  United  States, 
separation  deeds  are  plainly  legalized. 
Stat.  36  &  37  Vict,  cited  in  Re  Besaut, 
L.  R.  11  Ch.  D.  508.  Thus,  the  cus- 
tody of  the  offspring  may  now  he 
distinctly  provided  for,  as  it  would  ap- 
pear, in  an  English  deed  of  separation. 
But  at  the  same  time,  chancery,  where 
the  child  is  made  a  ward  of  the  court, 
will  prutect  the  child's  welfare.  Re 
Besant,  L.  R.  11  Ch.  D.  508;  Besaut 
v.  Wood,  L.  R.  12  Ch.  D.  605.  See, 
further,  Schouler,  Hus.  &  Wife,  §§  480- 
482. 

Upon  still  another  point,  namely,  the 
restitution  of  conjugal  rights,  the  Eng- 
lish chancery  lias,  of  late,  departed 
widely  from  its  earlier  precedents.  In 
Great  Britain,  where  this  suit  for  resti- 
tution of  conjugal  rights  has  always 
been  permitted,  it  was  formerly  ruled 
in    the  matrimonial   courts,  and   seemed 

to  be  the  well  settled  doctrine,  that  a 
deed  of  separation  afforded  do  bar  to 
bui  h  a  sail  whenever  either  party  chose 
to  enforce  the  remedy;  and  this,  even 

lb    m    li  the  deed  in   terms   forbade  such 

proceedings.      1    Bishop,   Mar.  &    Div. 

and  numerous  eases  cited,     This 

in  ;i'  cordance  wit  h  the  first  idea 

|.  irat  i"ii  deeds  might  indirect  [y 

their   beneficial   cove- 


nauts  as  concerned  parties  bent  upon 
separation,  but  not  directly  upheld. 
That  rule  has  changed ;  for,  as  the 
English  statute  now  provides,  a  deed 
of  separation  which  contains  a  cove- 
nant forbidding  the  suit  for  restitution 
of  conjugal  rights  to  be  brought,  will 
bar  such  a  suit.  Marshall  v.  Marshall, 
39  L.  T.  640.  And  to  oue  separated 
spouse  chancery  will  now  grant  an  in- 
junction, by  virtue  of  such  a  covenant, 
to  restrain  the  other  spouse  from  suing 
for  restitution  of  conjugal  rights.  Be- 
saut v.  Wood,  L.  R.  12  Ch.  D.  605, 
and  cases  cited.  Under  the  English 
divorce  act  of  20  &  21  Vict.  c.  85,  suits 
for  restitution  of  conjugal  rights  are 
still  permitted.  1  Bishop,  Mar  &  Div 
§  771.  Compromise,  too,  of  the  suit 
for  restitution  of  conjugal  rights  is  per- 
mitted in  England.  Stanes  v.  Staues, 
L.  R.  3  P.  D.  42.  There  is  this  funda- 
mental distinction  between  the  English 
suit  for  divorce  or  judicial  separation, 
and  the  suit  for  restitution  of  conjugal 
rights  :  that  in  the  former  instance  the 
chief  object  is  to  free  the  petitioner  in 
whole  or  in  part  from  the  marriage 
obligations  ;  but  in  the  latter,  to  control 
the  other  spouse  so  as  to  compel  once 
more  an  unwilling  cohabitation.  See 
language  of  court  in  Firehrace  v.  Eire- 
brace,  39  L.  T.  94.  Restitution  of  con- 
jugal rights  is  a  remedy  unknown  in 
the  United  States,  where  courts  may 
finally  part,  but  cannot  forcibly  reunite, 
the  separated  spouses.  See  Schouler, 
HUB.  &  Wife,  §§482,  483;  1  I5i.sh.ip, 
Mar.  &  Div.  5th  ed.  §  771.  And  see 
as  to  specific  performance  of  an  agree- 
ment tn  separate,  Gibbs  v.  Harding, 
I,  |{.  5  Ch.  336. 

1  Nieol  r.  Nicol,  31  Ch.  D.  524; 
Knapp  v.  Knnpp,  95  Mich.  474.  Even 
where  the    mat  rimonial    resumption    is 


CHAP.  XVII.]  SEPARATION   AND    DIVORCE.  §  219 

a  recent  disposition  to  aid  the  reconciliation  contracts  of  spouses 
who  have  been  living  apart.1  But  a  postnuptial  contract,  made 
in  consideration  of  the  settlement  of  differences  which  had 
caused  a  temporary  separation,  appears  to  be  founded  on  a  valid 
consideration,  and  its  transfers  will  not  be  disturbed.2  And  a 
decree  of  divorce  without  alimony  may  rely  upon  the  continu- 
ance of  provisions  for  just  support  under  a  previous  separation 
deed.3 

§  219.  Abandonment;  Rights  of  Deserted  Wife. — Abandon- 
ment by  either  spouse  consists  in  leaving  the  other  wilfully 
and  with  the  intention  of  causing  their  perpetual  separation. 
As  to  the  right  of  the  wife,  when  abandoned  by  her  husband, 
to  earn,  contract,  sue,  and  be  sued,  to  much  the  same  effect  as 
a,  feme  sole,  while  such  abandonment  actually  lasts,  the  current 
of  American  authority,  legislative  and  judicial  alike,  decidedly 
favors  so  just  a  doctrine.4  Modern  married  women's  acts  often 
permit  the  wife  to  do  quite  or  nearly  as  much  when  not  aban- 
doned at  all.  And  in  England,  recent  statutes  secure  to  a 
married  woman  privileges  to  a  similar  extent  under  like  cir- 
cumstances of  abandonment.5      The  test  is,  observes  a  recent 


not    on    the    full    footing    of    cohabi-  whom  she   committed    adultery   after- 

tancy,     a     substantial     resumption     is  wards.     Izard  v.  Izard,  14  P.  I).  45. 
enough.     Zimmer  v.   Settle,  124  N.  Y.  4  See  Shaw,  C.  J.,  in  Abbott  v.  Bay- 

37,    C  ley,  6  Pick.  89  ;  Benadum  v.  Pratt,  1 

1  Barbour  v.  Barbour,  49  N.  J.  Eq.  Ohio  St.  403  ;  Spier's  Appeal,  2  Casey, 
429.     But  cf.  78  Iowa,  177.  233 ;  Mead   v.    Hughes,    15   Ala.    141; 

2  Phillips  r.  Culliton,  153  Mass.  17;  Rhea  v.  Rheuner,  1  Pet.  105;  Moore  v. 
Burkholder's  Appeal,  105  Penn.  St.  31.  Stevenson,  27  Conn.  14;  Schouler,  Hus. 
See  as  to  the  offer  by  one  party  to  re-  &  Wife,  §  486,  citing  numerous  cases, 
turn,  Farber  v.  Farber,  64  Iowa,  362.  and  appendix.  And  see  the  various 
A  written  agreement  of  spouses,  where  statutes  in  almost  every  State  in  the 
there  had  been  no  separation,  to  do  Union,  enlarging  the  rights  of  married 
certain  things  in  consideration  of  ignor-  women  in  such  cases ;  Peck  v.  Marling, 
ing  their  former  quarrels  was  held  un-  22  W.  Va.  708 ;  Phelps  v.  Walther,  78 
enforceable  in  Miller  v.  Miller,  78  Iowa,  Mo.  320;  78  Me.  215;  69  Iowa,  641. 
177.  A  wife  thus   abandoned  is  favored  in 

8  Galusha  v.  Galusha,  1 1 6  N.  Y.  635.  applying  the   crops   of    the   husband's 

A  separation  deed  affords  no  bar  to  a  land  for  the  family  support.     128  Iud. 

legal  divorce   for  causes  subsequently  150. 

arising ;  nor  for  damages  against  the  6  See  Stat.  20  &  21  Vict.  c.  85 ;  Mid- 
offending  spouse,  where  the  separation  land  R.  R.  Co.  v.  Pye,  10  C.  B.  n.  s.  179. 
agreement  was  because  of  the  intimacy  Chancery  has  long  moulded  its  pro- 
of the  wife  with  a  third  person,  with  ceedings  to  secure  a  like  privilege.     In 

333 


§  220  THE   DOMESTIC   RELATIONS.  [PART   II. 

American  case,  whether  the  husband  may  be  deemed  to  have 
renounced  his  marital  rights  and  relations.1 

The  great  contrariety  of  current  legislation  is  a  great  obstruc- 
tion, however,  to  formulating  a  decided  rule  of  English  and 
American  jurisprudence  on  this  point.  We  have  seen  that,  under 
the  old  common-law  doctrine  of  coverture,  the  wife  could  not 
sue  or  be  sued,  or  otherwise  act  as  a  single  woman,  unless  the 
husband  was  under  the  disability  of  a  civil  death,  which  meant 
originally  banishment  and  abjuration  of  the  realm.  The  wife's 
ricrhts  being  enlarged  by  statute  under  such  circumstances,  we 
have  therefore  to  inquire  into  the  scope  of  any  statute  in  point. 
Some  of  our  local  acts  are  construed  as  affording  a  substitute 
for  the  common-law  rule,  and  not  as  merely  cumulative,  and 
hence  require  a  literal  interpretation.  In  general,  such  legisla- 
tion is  to  be  considered  as  grafted  upon  the  common  law  of 
coverture  which  prevailed  when  this  country  was  settled,  and 
at  the  Revolution.  It  contemplates  abandonment,  and  not 
what  might  be  designed  as  a  merely  temporary  withdrawal  from 
cohabitation ;  and  it  regards  the  husband  in  general  as  com- 
pletely out  of  the  jurisdiction  of  the  State,  never  having  entered 
it,  or  else  having  forsaken  it.2 

§  220.  Divorce  Legislation  in  General.  —  Divorce  laws  have 
constantly  given  rise  to  most  interesting  and  earnest  discussions  ; 
and  men  differ  very  widely  in  their  conclusions,  while  all  admit 
the  subject  to  be  of  the  most  vital  importance  to  the  peace  of 
families  and  the  welfare  of  nations.  Some  favor  a  rigid  divorce 
system  as  most  conducive  to  the  moral  health  of  the  people  ; 
others  urge  a  lax  system  on  the  same  grounds.  On  two  points 
only  do  English  and  American  jurists  seem  to  agree:  first,  that 
the  government  has  the  right  to  dissolve  a  marriage  during  the 

,.     Lancaster,   23    E.   L.    &  Eq.    127;  farther,  Schouler,  Hus.  &  Wife,  §§  485, 

Johnson   '••    Kirkwood,  4    Dru.  &  War.  487.     It  is  humane  and  just  to  construe 

:;7:>.     A    right   of   action   is   conferred,  the  common  law  as  permitting  the  wife, 

too,  under  33  &  34  Vict.  c.  98.     Moore  when  permanently  abandoned   by  the 

.     Robinson,  27  \V.  li.  812.  husband,  to  sue  in   her  own  name  for 

1  Ay er  v.  Warren,  47  Me.  217.  personal  injuries.     Wolf    v.   Banereis, 

:,t  Length,  Schouler,  Hus.  &  72   Md.  481.     Various  modern  codes 

Wit.,      i-i    and  appendix,     And  as  to  now  give  the  right  still  more  broadly. 
leparate   maintenance   to  a  wife,  see 
334 


CHAP.  XVII.]  SEPARATION    AND    DIVORCE.  §  220 

lifetime  of  both  parties,  provided  the  reasons  are  weighty;  second, 
that,  unless  those  reasons  are  weighty,  husband  and  wife  should 
be  divorced  only  by  the  hand  of  death.1 

The  ancient  nations,  all  recognizing  the  necessity  of  some 
divorce  legislation,  differed  in  their  method  of  treatment. 
Among  the  Greeks,  despite  their  intellectual  refinement,  the 
marriage  institution  was  degraded,  even  in  the  palmiest  days  of 
Athens.  The  husband  could  send  away  his  wife,  and  the  wife 
could  leave  her  husband ;  the  procedure  in  either  case  being 
quite  simple.2  In  Rome  more  of  the  moral  and  religious  ele- 
ment prevailed  ;  and  so  strictly  was  marriage  respected  in  the 
days  of  the  Republic,  that  no  divorce  is  supposed  to  have 
occurred  for  more  than  five  hundred  years  from  the  foundation 
of  the  city  ;  and  the  earliest  recorded  instance  may  possibly 
have  been  under  the  rightful  head  of  void  and  voidable  mar- 
riage.3 But  ancient  Rome  was  built  on  family  discipline,  rather 
than  domestic  love ;  the  husband  exercised  full  sway,  and  the 
stately  and  severe  Roman  matron  disappeared  entirely  in  the 
later  dissolute  and  corrupt  years  of  the  Roman  Empire,  and 
before  an  empire  succeeded  it.4  The  ideal  of  marriage  among 
the  Hebrews  was  high  :  that  husband  and  wife  should  cleave 
together  and  be  one  flesh  ;  nevertheless,  the  usage  of  this  nation, 
founded  upon  the  Mosaic  code,  seems  to  have  permitted  the 
husband  to  dismiss  his  wife  at  pleasure.  The  Christian  influ- 
ence and  teaching  has  been  to  condemn  all  arbitrary  exercise 
of  power  in  this  respect,  to  place  man  and  woman  on  more 
nearly  an  equal  footing,  to  discourage  all  lax  and  temporary 
unions,  and  to  warn  the  legislator  that  those  whom  God  hath 
joined  man  may  not  with  impunity  put  asunder.6 

The  influence  of  Christianity  has  been  felt  in  modern  Europe, 
spreading  to  England,  whence,  too,  it  was  brought  to  the  wilds 
of  America;  the  Christian  rule  ever  shaping  the  policy  of 
government.     But  this  rule  has  received  different  methods  of 

1  Upon  divorce  causes  and  divorce  put  away  his  wife  for  barrenness.  1 
procedure,  see  Schouler,  Hus.  &  Wife,  Bishop,  Mar.  &  Div.  §  23;  Woolsey, 
Part  IX.;  also  Bishop,  Mar.  &  Div.,  2     Div.  41. 

vols,  passim.  4  See  the  cause   of  Rome's   decay, 

2  Woolsey,  Divorce  Legislation,  31.     which  Horace  divines,  in  Carm.Lih.  iii.  6. 

3  Spurius  Carvilius  Ruga,  B.  C.  231,  5  Schouler,  Hus.  &  Wife,  §  490. 

335 


§  220  a  THE   DOMESTIC   RELATIONS.  [PART  II. 

interpretation.  The  Church  of  Eome  treats  marriage  as  a  sacra- 
ment, and  indissoluble  without  a  special  dispensation,  even  for 
adultery.  Protestants  are  divided :  all  regarding  adultery  as  a 
sufficient  source  of  divorce  ;  many  considering  desertion  equally 
so,  others  cruelty ;  while  a  strong  current  of  local  authority  in 
this  country  tends  to  multiply  the  legal  occasions  for  divorce 
even  down  to  such  pretexts  as  incompatibility  of  temper.  So 
loose,  indeed,  and  so  confusing,  is  our  State  marriage  and  divorce 
legislation  becoming,  that  it  might  be  well  to  ask  whether  the 
cause  of  morality  would  not  be  promoted,  if,  by  constitutional 
amendment,  the  whole  subject  were  placed  in  the  control  of 
the  general  government ;  so  that,  at  least,  one  uniform  system 
could  be  applied,  and  the  experiments  of  well-meaning  reformers 
be  subject  to  an  unerring  and  crucial  test.1 

§  220  a.  Legislation  upon  Divorce;  Divorce  from  Bed  and 
Board  ;  Divorce  from  Bond  of  Matrimony,  &c.  —  Private  agree- 
ment for  divorce  is  repugnant  to  the  good  sense  of  England  and 
the  United  States ;  government  must  interpose  to  pronounce 
the  sentence  ;  and  collusion  between  the  parties  to  dissolve  their 
own  relation  is  so  little  favored  —  however  much  the  courts 
may  have  reluctantly  yielded  to  uphold  deeds  of  mere  separa- 
tion2—  that  the  divorce  tribunal  shields  the  public  conscience, 
and  requires  that  even  in  a  default  the  complainant's  case  be 
made  out  properly.3  The  English  Divorce  Act  (Stat.  20  &  21 
Vict.  c.  85,  §  7)  places  the  whole  subject  since  1858,  more  than 
formerly,  upon  the  recognized  American  plane,  by  investing 
judicial  tribunals  with  power  competent  to  pronounce  sentence 
in  each  case  conformably  to  general  directions  of  the  statute. 
Divorce  may,  therefore,  be  granted  from  bed  and  board  (a  mcnm 
et  thoro)  or  from  the  bonds  of  matrimony  (a  vinculo)  by  the 
prevailing  English  and  American  practice.     The  former,  which 

1  Schouler,   Hus.  &  Wife,  §  490  a,  existence   of    some   forty   independent 

where  t  his  point  is  dwelt  upon  at  greater  jurisdictions,  which  enable  our  citizens 

length.     There   is  a  growing  and  dan-  travelling  from  one  State  to  another  to 

gerona  laxity  in  the  United   States  as  find   facilities  for   divorce   and    remar- 

to  the  permanency  of  the  marriage  rela-  riage  always  at  hand. 
Hon.     One    difficulty    is    our    universal  a  Supra,  §  215. 

tendency    to    greater    social    freedom,  8  Schouler,    IIus.    &   Wife,    §§  499, 

freedom   a    between  the  sexes,   woman  500;  2  Bishop, §§  285,  236. 
herself    pressing    for    it;    another    the 

336 


CHAP.  XVII.]  SEPARATION  AND   DIVOKCE.  §  220  b 

is  a  sort  of  judicial  separation,  applies  to  the  less  heinous 
offences,  wherever  a  legislature  recognizes  any  distinction  ;  while 
the  latter,  which  alone  is  complete,  is  the  remedy  for  the  greater 
offences,  or,  according  to  the  most  conservative  policy,  for 
adultery  only.  The  one  is  partial  divorce  or  a  legalized  separa- 
tion ;  the  other  is  final  and  full  divorce.1  Divorces  nisi  are 
sometimes  decreed,  being  in  the  nature  of  a  partial  and  not 
final  divorce,  so  as  to  afford  delay  fur  remedying  error  or  allow- 
ing a  last  chance  for  reconciliation.  The  old  ecclesiastical 
remedy  for  restitution  of  conjugal  rights,  still  available  in  Eng- 
land, had  never  a  foothold  in  the  United  States,  the  prejudice 
being  too  strong  against  it ;  specific  performance  of  marriage  is 
consequently  unenforceable  even  by  way  of  penalty.2 

§  220  b.  Causes  of  Divorce  :  Adultery  ;  Cruelty  ;  Desertion ; 
Miscellaneous  Causes.  —  We  shall  only  briefly  advert  to  the 
chief  causes  of  divorce  recognized  by  our  modern  legislation. 
Adultery  is  the  cause  of  divorce  most  universally  commended : 
a  plain  offence,  and  one  which  involves  conjugal  unfaithfulness 
at  the  most  vital  part  of  the  marital  relation.  By  adultery  we 
mean  the  voluntary  sexual  intercourse  of  either  married  party 
with  some  one,  married  or  single,  of  the  opposite  sex,  other  than 
the  offender's  own  spouse.  Adultery  justifies  divorce  from 
bond  of  matrimony  under  most  codes  ;  and  while  the  English 
statute  has  been  somewhat  partial  to  a  husband  who  sins  with- 
out otherwise  offending  his  wife  or  without  atrocious  accom- 
paniments of  the  crime,  American  policy  treats  both  sexes  alike, 
and  visits  the  guilt  of  husband  or  wife  alike.3  As  for  cruelty, 
legal  cruelty  is  more  readily  expounded  by  negative  than  affirm- 
ative language.  This  cause  of  divorce  is  designed  regularly  for 
the  vindication  of  the  weaker  party,  usually  (but  not  necessa- 
rily) a  wife,  whose  wrong  from  her  husband's  cruelty  may  be 
found   greater,   in   the   average  of  cases,  than  from  his  silent 

i  Schouler,    Hue.   &    Wife,    §   495.  2  Schouler,  Hus.  &  Wife,  §  497. 

Local  codes  should  be  carefully  studied  8  lb.   §§  504-506,  aud   cases  cited  ; 

on  this  point,  as  they  differ  in  policy.  1   Bishop,  §§  65,  661  ;  7  Mass.  474;  42 

Many  causes  for  annulling  a  marriage  Mich.    267 ;    Mordaunt   v.    Moncrieffe, 

are   in   these   days    specified    in    local  L.  R.  2  H.  L.  Sc.  374. 
codes  as  causes  of  divorce.     See  supra, 
§14. 

22  337 


§  220  b  THE   DOMESTIC    RELATIONS.  [PART   TL 

infidelities.  In  general,  it  should  be  stated  that  wherever  the 
conduct  of  one  spouse  to  the  other  is  such  that  the  latter  cannot 
continue  cohabitation  without  reasonable  ground  for  fearing 
such  bodily  harm  from  the  former  as  seriously  to  obstruct  the 
exercise  of  marital  duties,  or  render  the  conjugal  state  unen- 
durable, there  legal  cruelty  exists,  and  cause  for  divorce ;  and 
from  this  point  of  view  violence  actually  committed  and  vio- 
lence threatened,  if  with  sinister  intention,  are  treated  as  alike 
reprehensible.1  Desertion,  or  the  wilful  abandonment  of  one 
spouse  by  the  other,  was  not  a  recognized  cause  of  divorce  under 
England's  ecclesiastical  law,  as  promulgated  at  the  settlement  of 
this  country;  but  the  English  divorce  statute  made  it,  when 
without  cause  and  extending  over  the  space  of  two  years,  a 
third  cause  for  judicial  separation ;  while  meantime,  in  the 
United  States,  where  remedies  for  restitution  of  conjugal  rights 
were  discarded,  desertion  for  a  specified  period  has  long  been  a 
permitted  cause  for  divorce ;  perhaps  for  a  limited  divorce  in 
the  first  instance,  and  yet,  quite  commonly,  as  in  the  case  of 
adultery  or  cruelty,  for  a  divorce  ultimately  if  not  immediately 
from  the  bonds  of  matrimony.2  Three  things  are  usually  im- 
ported in  this  legal  desertion :  an  actual  cessation  of  cohabita- 


1  Schonler,   IIus.   &  Wife,  §  507  et  harshly  made  and  repeated.      67  Tex. 

seq.,  and  numerous  cases  cited;  Evans  198.      Chastisement     of     the    wife    is 

t\   Evans,   1    Hag.   Con.  35;  1    Bishop,  cruelty,  and  certainly  when  repeated; 

Mar.  &   Div.    §§   715-717;    Latham  v.  but  not  such  acts  as  laying   his  hand 

Latham,  30  Gratt.  307;  25  N.  J.  Eq.  on  her  shoulder.     65  Md.  104;  21   Fla. 

526  ;  23  Ore.  226.  571  ;  supra,  §  44. 

Legislative  enactments  use  various  As  to  masturbation,  see  141   Mass. 

expressions,  some  of  which  stop  short  495.      For   cruelty    by   neglecting   the 

of  the  extremity  of  cruelty;  e.g.,  "ex.-  wife  wantonly  when  she  was  critically 

"outrages,"    "intolerable    in-  ill,  see  56  Mich.  50. 
dignities,"  &e.     And   see  such  phrases  2  Schonler,  Hus.  &  Wife,  §§  515-523 
a     "cruel  and  inhuman,"  "cruelty  of  and  cases  cited;  Pape  v.  Pape,  20  Q. 
nent,"    "extreme    and     repeated  B.  1).    76;    Act  20  &  21   Vict.  c.   85, 
cruelty,"  &c.  §16;  1    Bishop,   Mar.   &  Div.   §§771- 
ln  some  States  a  husband  who  un-  775;  38  N.  J.  Eq.  363.    Note  the  vary- 
justly  charges  his  wife  with  unchastity  ing  language  of  local  codes  on    this 
itv  of  BUch  cruelty  as  entitles  Iter  suliject:  "wilful  desertion,"  "  abandon- 
to  a  divorce.     Balm  ?\  Balm,  62  Tex.  ment,"  " wilful  absence," &c.    The  time 
518;    Avery  '•.  A  very,  33  Kan.  I.     And  specified  varies  from   one  to  five  years; 
•  the  wife's  unjust   charge,  see  30  three  years  being,  perhaps,  the  fair  ave- 
Kan    712;    18  Nev.  49.     Especially  if  rage.     See  IIP.  D.  Ill,  as  to  neglect  to 
accusations    are    publicly    and  comply  with  a  decree  of  restitution. 

QQQ 


CHAP.  XVII.]         SEPARATION   AND   DIVORCE. 


220  6 


tion  for  the  period  specified ;  the  wilful  intent  of  the  absent 
spouse  to  desert ;  desertion  by  that  spouse  against  the  will  of 
the  other.1 

As  to  the  various  other  causes  of  divorce  which  are  specified 
from  time  to  time  by  local  statute,  with  much  variety  of  verbal 
expression,  these  are  for  the  most  part  modifications  of  the  three 
chief  ones  we  have  just  enumerated.  For  with  few  exceptions, 
all  causes  of  divorce  have  one  or  more  of  the  three  leading 
elements  present :  there  is  adultery  or  cruelty  or  desertion  ;  or, 
to  speak  less  literally,  sexual  infidelity,  maltreatment,  or  the 
wrongful  cessation  of  marital  intercourse.  Thus,  among  offences 
akin  to  adultery  which  are  specified,  are  sodomy  and  bestial 
crimes  against  nature,  concubinage,  and  habitual  loose  intercourse 
with  persons  of  the  opposite  sex.2  Offering  indignities  to  the 
person  of  a  spouse,  conviction  of  felonious  crime  (which,  besides 
separation,  visits  disgrace  upon  the  innocent),  gross  and  con- 
firmed habits  of  intoxication  or  habitual  intemperance,  gross 
neglect  of  duty,  abusive  treatment,  — all  these  are  of  the  nature 
of  cruelty.3  Joining  the  Shakers  (among  whom  the  relation  of 
husband  and  wife  is  held  unlawful),  absenting  one's  self  unrea- 
sonably long,  —  causes  like  these  are  in  the  nature  of  desertion ; 
and  insanity,  withholding  sexual  intercourse,  and  various  other 
causes  not  clearly  recognized  as  justifying  divorce,  are  of  a  like 
nature.4  But  other  miscellaneous  causes  of  divorce  may  be 
found  specified  in  American  codes :  some  mingling  fraud  and 
other  nullifying  causes  as  grounds  for  a  divorce  ;  some  again 
permitting  divorce  to  be  granted  at  judicial  discretion  for  any 
other  cause  or  upon  general   considerations  of  the   peace   and 


1  Sergent  v.  Sergent,  33  N.  J.  Eq. 
204  ;  Latham  t>.  Latham,  31  Gratt.  307  ; 
Morrison  v.  Morrison,  20  Cal.  431. 
There  is  no  cause  of  divorce  in  which 
the  collusion  of  a  discontented  pair  is 
more  likely  to  prevail,  unless  the  court 
is  quite  circumspect,  than  this  alleged 
desertion. 

2  Schouler,  Hus.  &  Wife,  §  525; 
Stevens  v.  Stevens,  8  R.  I.  557 ;  10  Ire. 
506. 

8  Schouler,   Hus.    &    Wife,    §   526. 


Pending  an  appeal  from  a  conviction 
of  a  felony,  the  conviction  cannot  be 
urged  as  ground  for  divorce.  Rivers  v. 
Rivers,  60  Iowa,  378.  But  actual  im- 
prisonment for  the  statute  period  is  a 
cause  of  divorce,  notwithstanding  a  bill 
of  exceptions  be  filed.  Cone  v.  Cone, 
58  N.  H.  152. 

4  Schouler,  Hus.  &  Wife,  §§  527, 
528.  In  some  instances  it  might  be 
hard  to  say  whether  cruelty  or  desertion 
is  the  stronger  element. 

339 


§  221  THE   DOMESTIC   RELATIONS.  [PART   II. 

morality  of  society,  —  a   dangerous  latitude    should   any  court 
choose  to  abuse  its  functions.1 

§  221.  Effect  of  Absolute  Divorce  upon  Property  Rights.  — 
The  effect  of  divorce  from  bonds  of  matrimony  upon  the  prop- 
erty rights  of  married  parties  is  substantially  that  of  death,  or 
rather  annihilation.  We  speak  here  of  bona  fide  and  valid  and 
complete  decrees  of  dissolution.2  And,  save  so  far  as  a  statute 
may  divide  the  property  or  restore  to  each  what  he  or  she  had 
before,  or  a  decree  for  alimony  may  fasten  directly  upon  the 
property  in  question,  the  guilt  or  innocence  of  either  spouse  does 
not  affect  the  case.3  This  is  a  topic  upon  which  the  common 
law,  from  the  infrequency  of  divorce,  furnishes  no  light,  except 
by  analogies.  The  settled  usage  of  Parliament  in  granting 
divorce  has  been  to  introduce  property  clauses  to  the  above 
effect  into  the  sentence  of  dissolution  regulating  the  rights  and 
liabilities  of  the  respective  parties,4  but  even  in  these  cases  the 
rights  of  divorced  parties  as  to  tenancy  by  the  curtesy,  chattels 
real,  and  rents  of  the  wife's  lands,  are  still  unsettled ;  and  in 
genera],  the  consequence  by  act  of  Parliament  "  does  not  very 
clearly  appear."  5  But  under  the  new  English  Divorce  Act,6  it 
is  held  in  a  recent  case  that  where  the  wife,  at  the  date  of  the 
decree  of  divorce  a  vinculo,  was  entitled  to  a  reversionary  inter- 
est in  a  sum  of  stock  which  was  not  settled  before  her  marriage, 

1  Schonler,   Hus.   &   Wife,   §§  530,  out  a  case  for  divorce).     Cross-bills  are 

531  ;  1  Bishop,  Mar.  &  Div.  §  827  ;  31  often   filed,  each  party  seeking  divorce 

Me.    590.     It    matters    not   that  from  for   the   other's   fault.     The  husband's 

some    perverted    religious    belief    and  condonation  of  his  wife's  adultery  does 

conscientiously,  and  not  with  criminal  not  debar  her  from  divorce  from  him 

intent,   one    spouse    transgresses;    the  if    he     afterwards    commits    adultery. 

usual   divorce  remedy  lies  open  to  the  Cumming  v.  dimming,  135  Mass.  386. 

other    spouse    nevertheless.      74    Tex.  For  the  Scotch  law  of  condonation,  see 

414.  Collins  v.  Collins,  9  App.  Cas.  205. 

For  divorce  procedure,  see,  at  length,  As  to  connivance  at  a  wife's  adultery 

Bchouler,    Hus.    &    Wife,    §§  533-55(5;  which  debarred  a  divorce, see  136  Mass. 

2  Bishop,  Mar.  &  Div.  passim.     Among  310. 

the    permitted    defences,    besides   that  2  See  invalid  decree  disregarded  in 

"I  .!  tailing  the  Libellant's  proof,  is  re-  Cheely  v.  Clayton,  110  U.  S.  701. 

crimination  (since  the  party  alleging  a  8  See  Harvard  College  v.  Head,  111 

wrong  mnsl  come  into  court  with  clean  Mass.  209. 

hands),  condonation  (or  conditional  for-  4  Macq.  Hus.  &Wife,  210,  214. 

connivance   (or  aiding  and  5  2  Bright,  Hus.  &  Wife,  366. 

abetting  the  offence,  usually  from  cor-  «  Stats.  20  &  21   Vict.  c.  85;  21  & 

rupt  and  sinister  motives,  so  as  to  make  22  Vict.  c.  108;  23  &  24  Vict.  c.  144. 

840 


CHAP.  XVII.]         SEPARATION   AND   DIVORCE.  §  221 

and  had  been  the  subject  of  a  postnuptial  settlement,  and  after 
the  decree  the  fund  fell  into  possession,  her  divorced  husband 
had  no  right  to  claim  it.1  The  English  doctrine,  as  thus  indi- 
cated, is  that  the  same  consequences  as  to  property  must  follow 
the  decree  of  dissolution  by  the  divorce  court  as  if  the  marriage 
contract  had  been  annihilated  and  the  marriage  tie  severed  on 
that  date.     Such,  too,  has  been  the  spirit  of  later  decisions.2 

In  settlements  and  trusts  involving  intricate  family  arrange- 
ments, however,  the  English  rule  is  not  yet  uniform  and 
positive.3 

In  this  country  the  effect  of  divorce  a  vinculo  is  frequently 
regulated  by  statute.  And  in  general,  and  independently  of 
statute,  all  transfers  of  property  actually  executed  before  di- 
vorce, whether  in  law  or  in  fact,  remain  unaffected  by  the  de- 
cree. For  instance,  personal  choses  of  the  wife  already  reduced 
to  possession  by  the  husband,  remain  his.4  A  voluntary  settle- 
ment which  is  completely  executed  will  not  be  arbitrarily  revoked 
by  a  court.5  But  as  to  rights  dependent  on  marriage  and  not 
actually  and  fully  vested,  a  full  divorce,  or  the  legal  annihilation, 

1  Says  Vice-Chancellor  Wood  :  some  innocent  party,  or  without  eonsid- 
"  Here  the  contract  has  been  deter-  eration  as  to  which  spouse  offended, 
mined  by  a  mode  unknown  to  the  old  Fitzgerald  v.  Chapman,  L.  R.  1  Ch.  D. 
law,  namely,  by  a  decree  of  dissolu-  5G3.  Jessel,  M.  R.,  here  discredits  Fus- 
tiou ;  and  wwthe  husband  was  unable,  sell  v.  Dowding,  and  other  cases  cited 
during  the  existence  of  the  contract,  to  supra.  And  see  Burton  v.  Sturgeon, 
reduce  this  chattel  into  possession,  I  L.  R.  2  Ch.  D.  318 ;  Codrington  v.  Cod- 
must  hold  that  the  property  remained  rington,  L.  R.  7  H.  L.  854.  And  in 
the  property  of  the  wife."  Wilkinson  certain  causes  the  Divorce  Act  confers 
v.  Gibson,  L.  R.  4  Eq.  162.  the  power  to  modify  the  marriage  set- 

2  Pratt  v.  Jenner,  L.  R.  1  Ch.  493;  tlement  upon  final  sentence.  20  &  21 
Fussell  u.  Dowding,  L.  R.  14  Eq.  421  ;  Vict.  c.  85,  §  45.  Where  application  is 
Swift  v.  Wenman,  L.  R.  10  Eq.  15;  made  for  that  purpose,  the  judicial  ob- 
Prole  v.  Soady,  L.  R.  3  Ch.  220.  And  ject  of  thus  proceeding  is,  apparently, 
one  who  obtained  a  sentence  of  disso-  to  prevent  the  innocent  party  from  be- 
lution  of  marriage  was  held,  moreover,  ing  injuriously  affected  in  property  by 
not  liable  to  be  joined  in  an  action  for  the  decree.  Maudslay  v.  Maudslay, 
tort  committed  by  his  wife  during  the  L.  R.  2  P.  D.  256.  On  the  decree  for 
coverture.  Capel  v.  Powell,  17  C.  B.  dissolution  of  marriage  becoming  abso- 
n.  s.  743.  lute,  it  takes  effect  from  the  date  of  the 

3  The  most  recent  cases  show  a  de-  decree  nisi.  Prole  v.  Soady,  L.  R.  3 
cided   indisposition   to   forfeit    a    hus-  Ch.  220. 

band's  rights  to  a  trust  fund,  where,  at  4  Lawson  v.  Shotwell,  27  Miss.  630. 

all   events,   the   effect   of    annihilation  6  Thurston,  Re,  154  Mass.  596. 

would  be  to  disturb  the  remote  right  of 

341 


§221 


THE   DOMESTIC   RELATIONS. 


["PART   II. 


ends  them.  This  applies  to  curtesy,  dower,  the  right  to  reduce 
choses  prospectively  into  possession,  rights  of  administration, 
and  property  rights  under  the  statutes  of  distribution.1  These 
doctrines  are  set  forth  in  local  codes,  which  frequently  save 
certain  rights,  such  as  the  wife's  dower  where  divorce  is  occa- 
sioned by  her  husband's  misconduct.  And  a  provision  under 
an  antenuptial  contract,  which  is  plainly  intended  as  a  substi- 
tute or  equivalent  for  dower  in  case  the  wife  survives  the  hus- 
band, is  barred  by  their  divorce.2 

As  to  torts  a  similar  rule  would  probably  apply.3  Separate 
property  of  a  wife  settled,  or  otherwise  vested  in  her,  is  not  to 
be  disturbed  by  a  divorce,4  nor  property  vested  already  in  the 
husband  by  gift  from  his  wife.5 


1  Dobson  v.  Butler,  17  Mo.  87;  4 
Kent,  Com.  53,  n.,  54  ;  Given  v.  Marr, 
27  Me.  112;  Wheeler  v.  Hotchkiss,  10 
Conn.  225  ;  Calanie  v.  Calame,  24  N.  J. 
Eq.  440;  Hunt  v.  Thompson,  61  Mo. 
148;  Schouler,  Hus.  &  Wife.  §  559; 
Rice  v.  Lumley,  10  Ohio  St.  596.  But 
see  Wait  v.  Wait,  4  Comst.  95  ;  Ensign, 
Re,  103  N.  Y.  284.  As  to  property  of 
the  husband  in  the  divorced  wife's  pos- 
session, see  Lane  v.  Lane,  76  Me.  521. 
As  to  community  property,  see  59  Tex. 
54;  60  Cal.  579.  Divorce  severs  the 
estate  of  husband  and  wife  by  the  en- 
tirety, 92Tenn.  695;  §  193. 

2  Jordan  v.  Clark,  81  111.  465.  Here 
divorce  was  granted  to  A.  for  the  fault 
or  misconduct  of  A.'s  wife,  but  the 
principle  of  the  case  was  that  the  wife 
could  only  be  entitled  to  receive  the 
provision  as  A.'s  widow.     A  divorce  a 

0  obtained  by  the  wife,  though  for 
the  husband's  misconduct,  bars  dower. 
Calame  v.  Calame,  24  N.  J.  Eq.  440. 
Ami  see  (Jleason  >•.  Emerson,  51  N.  II. 
405;  1 1  ii ii t  v.  Thompson,  61  Mo.  148. 
Cf.  New  York  statute  construed  in 
Bchiffer  v.  Pruden,  64  N.  V.  47;  also 
Ohio  statute,  in  44  Ohio  St.  645.  Some 
State  codes  provide  how  the  homestead 
■hall  be  disposed  of.    114  111.  375. 

1  base  v.  Chase,  6  Gray,  157 ;  2 
bishop,  Mar.  &  I)iv.  §  724 ;  Schooler, 


Hus.  &  Wife,  §  559.  And  see  Capel  v. 
Powell,  17  C.  B.  n.  s.  743. 

If  the  husband  receives  any  prop- 
erty of  the  wife  after  divorce,  she  may 
recover  it  in  a  suit  for  money  had  and 
received.  2  Bishop,  Mar.  &  Div.  714; 
Legg  v.  Legg,  8  Mass.  99.  See  Kint- 
zinger's  Estate,  2  Ashm.  455.  How 
far,  on  the  divorce  of  the  husband,  his 
assignee  may  claim  against  the  wife 
does  not  clearly  appear;  but  where  the 
divorce  was  obtained  through  his  fault, 
the  wife's  equitable  provision,  it  seems, 
will  be  favorably  regarded  as  against 
him.  2  Bishop,  §  715,  and  conflicting 
cases  compared ;  Woods  v.  Simmons, 
20  Mo.  3(13;  2  Kent,  Com.  136  et  seq. 
Divorce  takes  away  the  husband's  right 
of  administration  upon  the  estate  of  his 
divorced  wife.  2  Bishop,  Mar.  &  Div. 
5th  ed.  §  725  ;  Altemus's  Case,  1  Ashm. 
49.  See,  further,  as  to  the  effect  of 
divorce,  Schouler,  Hus.  &  Wife,  §  561, 
and  cases  cited.  For  implied  revocation 
of  a  will  by  divorce,  see  95  Mich.  16. 

4  Barclay  v.  Waring,  58  Ga.  86; 
Harvard  College  v.  Head,  111  Mass. 
209;  Schouler,  Hus.  &  Wife,  §  560; 
Jackson  v.  Jackson,  91  U.  S.  122; 
Stultz  »,  Stultz,  107  Ind.  400. 

It  is  held,  and  upon  that  principle 
of  Bound  policy  which  maintains  invio- 
late the  sanctity  of  the  marriage  union, 


342 


c  Tyson  v.  Tyson,  54  Md.  35. 


CHAP.  XVII.]  SEPARATION    AND   DIVORCE.  §  222 

§  222.  Effect  of  Partial  Divorce  upon  Property  Rights.  — 
Divorce  from  bed  and  board,  or  nisi,  produces,  however,  no  such 
sweeping  results  ;  the  cardinal  doctrine  here  being  that  the  mar- 
riage remains  in  full  force,  although  the  parties  are  allowed  to 
live  separate.  Here  we  must  consult  the  phraseology  of  local 
statutes  with  especial  care,  in  order  to  determine  the  respective 
rights  and  duties  of  the  divorced  parties.  Thus  the  consequence 
of  judicial  separation,  under  the  present  divorce  acts  of  England, 
is  to  give  to  the  wife,  so  long  as  separation  lasts,  all  property  of 
every  description  which  she  may  acquire,  or  which  may  come  to 
or  devolve  upon  her,  including  estates  in  remainder  or  reversion  ; 
and  such  property  may  be  disposed  of  b}'  her  in  all  respects  as 
if  she  were  a  feme  sole ;  and  if  she  dies  intestate  it  goes  as  if  her 
husband  had  then  been  dead.1 

In  this  country,  independently  of  statutory  aid,  the  property 
rights  of  the  parties  divorced  from  bed  and  board  remain  in  gen- 
eral unchanged.  For  this  divorce  is  only  a  legal  separation,  term- 
inable at  the  will  of  the  parties ;  the  marriage  continuing  in 
regard  to  everything  not  necessarily  withdrawn  from  its  opera- 
tion by  the  divorce.2  Thus,  the  husband  still  inherits  from  the 
wife,  and  the  wife  from  the  husband ;  the  one  takes  his  curtesy, 
the  other  her  dower;  and  even  the  right  of  reducing  the  wife's 
clwses  in  action  into  possession  still  remains  to  the  guilty  hus- 
band.3 But  chancery,  by  virtue  of  its  jurisdiction  in  awarding 
the  wife  her  equity  to  a  settlement,  may,  and  doubtless  will, 

while   further  discouraging   stale    and  marringe  is  not  revived  as  a  cause  of 

doubtful  litigation  to  which  their  final  action    ou    their     subsequent    divorce, 

and  angry  rupture  might  incite  one  of  Farley    v.   Farley,   91    Ky.   497.      But 

of  the  married  parties,  that  a  divorced  semble  the  wife  may  sue  the  husband  in 

wife  cannot  maintain  an  action  against  contract   upon    mutual  transactions   of 

her  divorced  husband  upon  an  implied  lejral  force  during  the  marriage  state, 

contract  arising  during  coverture  :  Pitt-  84  Me.  82. 

man  v.  Fittman,  4  Oreg.  298  ;  nor  for  l  Stats.  20  &  21  Vict.  c.  85,  §  25  ;  21 

an  alleged  assault  committed  upon  her  &  22  Vict.   c.  108,  §  8.     See  Romilly, 

while    they   were    husband    and   wife.  M.  R.  in  Re  Insole,  L.  R.  1  Eq.  470. 

Abbott  v.  Abbott,  G7  Me.  304;  84  Me.  2  Dean  v.  Richmond,  5  Pick.  461  ;  2 

82.     Such  remedies,  so  far  as  available  Bishop,  Mar.  &  Div.  5th  ed.  §  726  pi  serf. ; 

at  all,  ought  to  be  sufficiently  available  Castlebury  v.  Maynard,  95  N.  C.  281. 

at  the  time  the  right  accrued  and  during  3  Clark  v.  Clark,  6  Watts  &  S.  85  ; 

marriage.     As  to  a  note  from  the  di-  Kriger  v.  Day,  2  Pick.  316;  Smodt  o. 

vorced  husband,  see  Chapin  v.  Chapin,  Lecatt,  1   Stew.  590 ;  Ames  v.  Chew,  5 

135  Mass.  393.     A  debt  of  the  wife  to  Met.  320. 
her  husband  legally  extinguished  by  the 

343 


222 


THE   DOMESTIC   RELATIONS.  [PART   II.] 


keep  the  property  from  his  grasp,  and  do  to  both  what  justice 
demands.1  On  principle,  the  right  to  administer  would  seem 
not  to  be  forfeited  by  one's  divorce  from  bed  and  board.2 


1  Holmes  v.  Holmes,  4  Barb.  295 ; 
Schouler,  Hus.  &  Wife,  §§  161,  562,  563. 

2  But  see  limitations  suggested  iu 
Schouler,  Hus.  &  Wife,  §  563. 

The  recent  English  statutes  give  the 
wife,  upon  sentence  of  judicial  separa- 
tion, the  capacity  to  sue  and  he  sued 
on  somewhat  the  same  footing  as  a  /ewe 
sole.  The  rule  in  the  United  States  is 
not  uniform ;  but  the  tendency  is 
clearly  in  the  same  direction.  See  2 
Bishop,  Mar.  &  Div.  5th  ed.  §  737,  and 
cases  cited ;  Lefevres  v.  Murdoek, 
Wright,  205  ;  Clark  v.  Clark,  6  Watts, 
&  S.  85.  And  see,  further,  as  to  statu- 
tory provisions,  including  a  division  of 
property,  Schouler,  Hus.  &  Wife,  §  564, 
&  appendix ;  2  Bishop,  Mar.  &  Div. 
§§  509-519. 

Concerning  the  conflict  of  laws,  with 
respect  of  (1)  marriage,  (2)  marital 
rights  and  duties,  and  (3)  divorce,  see 
Schouler,  Hus.  &  Wife,  §§  566-575. 
As  affecting  the  rights  and  duties  of 
the  marriage  relation,  Story,  in  his 
Conflict  of  Laws,  after  an  extended 
discussion  of  the  great  diversity  of 
laws  existing  in  different  countries,  as 
to  the  incidents  of  marriage,  lavs  down 
the  following  primary  rules,  which  are 
of  general  application.  (1)  Where 
parties  are  married  in  a  foreign  coun- 
try, and  there  is  an  express  contract 
respecting  their  rights  and  property, 
present  and  future,  it  will  be  held 
equally  valid  everywhere,  unless,  under 
tin-  circnmstances,  it  stands  prohibited 
bj  iIm-  laws  of  the  country  where  it  is 
Bought  to  he  enforced.  It  will  act 
directly  on  movable  property  every- 
w  here.  Bui  as  to  immovable  property 
ina  foreign  territory,  it  will,  at  most, 
confer  only  a  right  of  action,  to  be  en- 
according  t"  the  jurisdiction  n i 
(2)  Where  such  an  express  con- 
tract applies  in  terms  or  intent  only  to 
i  properl j ,  and  I  here  Is  a  change 
nicile,  I  he  law  of  the  actual  domi- 

344 


cile  will  govern  the  rights  of  the  par- 
ties as  to  all  future  acquisitions.  (3) 
Where  there  is  no  express  contract,  the 
law  of  the  matrimonial  domicile  will 
govern  as  to  all  the  rights  of  the  parties 
to  their  present  property  in  that  place, 
and  as  to  all  personal  property  every- 
where, upon  the  principle  that  mova- 
bles have  no  situs,  or,  rather,  that  they 
accompany  the  person  everywhere.  As 
to  immovable  property,  the  law  rei  sitoz 
will  prevail.  (4)  Where  there  is  no 
change  of  domicile,  the  same  rule  will 
apply  to  future  acquisitions  as  to  pres- 
ent property.  (5)  But  where  there  is  a 
change  of  domicile,  the  law  of  the  actual 
domicile,  and  not  of  the  matrimonial 
domicile,  will  govern  as  to  all  future 
acquisitions  of  movable  property  ;  and 
as  to  all  immovable  property,  the  law 
rei  sitce.  Story,  Confl.  Laws,  §§  1 84-187. 
And  see  Besse  v.  Pellochoux,  73  111.  285. 
He  further  adds  that  although  in  a 
general  sense  the  law  of  the  matri- 
monial domicile  is  to  govern  in  relation 
to  the  incidents  and  effects  of  marriage, 
yet  this  doctrine  must  be  received  with 
many  qualifications  and  exceptions,  in- 
asmuch as  no  nation  will  recognize 
such  incidents  and  effects  when  incom- 
patible with  its  own  policy,  or  injurious 
to  its  own  interests.  So,  too,  perplex- 
ing questions  will  sometimes  arise  in 
determining  upon  the  real  matrimo- 
nial domicile  of  parties  who  marry  in 
transitu,  during  a  temporary  residence 
abroad,  or  on  a  journey  made  for  that 
purpose  with  the  intention  of  returning. 
But  the  true  principle  in  such  cases  is 
to  consider  as  the  real  matrimonial 
domicile,  the  place  where,  at  the  time 
of  marriage,  the  parties  intended  to 
fix  their  abode,  and  not  the  place  where 
the  ceremony  was  in  fact  performed. 
Story,  Confl.  Laws,  §jj  1S9-199,  and 
cases  cited.  See  also  I  Hinge,  Col.  & 
For.  Laws,  244-639;  Wharton,  Confl. 
Laws,  §S  118—121,  Hit;.  187-202  j  and 
Schouler,  Hus.  &  Wile,  §  570,  note. 


[CHAP.  I.]  LEGITIMATE  CHILDREN   IN   GENERAL.  §  223 


PART   III. 

PARENT  AND   CHILD. 


CHAPTER   I. 


OF   LEGITIMATE   CHILDREN   IN   GENERAL. 

§  223.  Parent  and  Child  in  General ;  Children  Legitimate  and 
Illegitimate.  —  The  second  of  the  domestic  relations  is  that  of 
Parent  and  Child ;  a  relation  which  results  from  marriage,  and 
is,  as  Blackstone  terms  it,  the  most  universal  relation  in  nature.1 
Both  natural  and  politic  law,  morality,  and  the  precepts  of  re- 
vealed religion  alike  demand  the  preservation  of  this  relation 
in  its  full  strength  and  purity.  In  the  first  period  of  their  exist- 
ence, children  are  a  common  object  of  affection  to  the  parents, 
and  draw  closer  the  ties  of  their  mutual  affection  ;  then  comes 
the  education  of  the  child,  in  which  the  parents  have  a  common 
care,  which  further  identifies  their  sympathies  and  objects ;  the 
brothers  and  sisters  of  the  child,  when  they  come,  bring  with 
them  new  bonds  of  affection,  new  sympathies,  new  common  ob- 
jects ;  and  the  habits  of  a  family  take  the  place  of  the  wishes  of 
an  individual.  Thus  do  children  give  rise  to  affections  which 
still  further  tend  to  bind  together  the  community  by  links  of 
iron.2 

Children  are  divided  into  two  classes,  legitimate  and  illegiti- 
mate.    The  law  prescribes  different  rights  and  duties  for  these 

1  1  TU.  Com.  447. 

2  1  Whewell,  Elements  of  Morality,  100;  2  Kent,  Com.  189. 

345 


§  225  THE   DOMESTIC   RELATIONS.  [PART   III. 

classes.1  It  becomes  proper,  then,  to  consider  them  in  order. 
First,  then,  as  to  legitimate  children,  to  which  topic  alone  the 
relation  of  parent  and  child  in  strictness  applies ;  this  will 
occupy  several  chapters.2 

§  224.  Legitimate  Children  in  General. — A  legitimate  child 
is  une  who  is  born  in  lawful  wedlock,  or  is  properly  brought 
within  the  influence  of  a  valid  marriage  by  reason  of  the  time 
of  birth.  Legitimacy,  as  the  word  imports,  will  require  that 
the  child  be  born  in  a  manner  approved  of  by  the  law.  If  he 
is  begotten  during  marriage  and  born  afterwards,  it  is  enough ; 3 
and  so,  too,  if  he  was  begotten  before  marriage  but  born  in  lawful 
wedlock.  We  have  seen  that  in  some  States  the  loose  "  contract" 
or  "  common-law "  marriage  is  held  valid,  with  the  same  legal 
consequences  as  a  ceremonial  marriage.4  Cohabitation  and  com- 
mon repute  raise  the  presumption  of  lawful  wedlock  sufficiently 
to  dispense,  ordinarily,  with  positive  proof  of  a  marriage.5 

§  225.  Presumption  of  Legitimacy.  —  The  maxim  of  the  civil 
law  is  Pater  est  quern  nuptice  demonstrant  ;  a  rule  frequently  cited 
with  approval  by  common-law  authorities,  though,  as  we  shall 
soon  see,  differently  applied  in  some  respects.6  A  distinguished 
Scotch  jurist  pronounces  this  "a  plain  and  sensible  maxim, 
which  is  the  corner-stone,  the  very  foundation  on  which  rests 
the  whole  fabric  of  human  society."7  Boullenois,  a  civil-law 
writer,  likewise  commends  it  as  "  a  maxim  recognized  by  all 
nations,  which  is  the  peace  and  tranquillity  of  States  and  fam- 
ilies."8 This  maxim  implies  that  it  is  always  sufficient  for  a 
child  to  show  that  he  is  born  during  the  marriage.  The  law 
draws  from  this  circumstance  the  necessary  presumption  that 
he  is  legitimate.  Every  child  born  in  wedlock  is  presumed  to 
be  legitimate,  and  the  child's  paternity  is  provable  by  reputa- 

1  1  BL  Com.  447.  6  1  Bl.  Com.  447;  Stair,  HI.  3,  42; 

2  The  words  "  child  "  or  " children  "  2  Kent,  Com.  212,  n.  ;  Fraser,  Parent 
in  a  statute  are  construed  as  embracing  &  Child,  1,  2,  and  authorities  cited; 
only  legitimate  children.     Orthwein  v.  1  Burge,  Col.  &  For.  Laws,  59. 
Thomas,  127  111.  554.  "•  Ld.  Pres.  Blair,  in  Rontledge  v. 

8  I  Bl.  Com.  447  ;  Fraser,  Parent  &  Carruthers,  19  May,  1812,  cited  hy  Fra- 

Child,  1  ;   1   Burge,  Col.  &  For.  Laws,  ser,  supra. 
59.  B  Boullenois,  Traits  <Ips  Status,  tome 

4  §§  25-29.  I,  p.  C2,  also  cited  hy  Fraser,  supra. 

»  §  29;   127  111.  554. 

346 


CHAP.  I.J       LEGITIMATE    CHILDREN    IN   GENERAL.  §  225 

tion.     Hence  the  burden  to  show  illegitimacy  is  cast  on  those 
who  allege  it  in  such  cases. 

Strong,  however,  as  this  presumption  may  be,  it  is  not  con- 
clusive at  law.  For  there  may  be  other  circumstances :  such 
as  long-continued  separation  of  the  parents;  the  impotence  of 
the  father;  also,  if  the  offspring  be  posthumous,  the  length  of 
period  which  has  elapsed  since  the  father's  death.  Such  cir- 
cumstances might  render  it  physically  and  morally  impossible 
that  the  child  was  born  and  begotten  in  lawful  wedlock.  The 
civil  law,  therefore,  admitted  four  exceptions  to  the  general 
maxim :  first,  the  absolute  and  permanent  impotence  of  the 
husband ;  second,  his  accidental  impotence  or  bodily  disability  ; 
third,  his  absence  from  his  wife  during  that  period  of  time  in 
which,  to  have  been  the  father  of  the  child,  he  must  have  had 
sexual  intercourse  with  her;  fourth,  the  intervention  of  sick- 
ness, vel  alia  causa.1  These  concluding  words  admit  the  classi- 
fication to  be  imperfect.  The  common-law  rule,  which  subsisted 
from  the  time  of  the  Year  Books  down  to  the  early  part  of  the 
last  century,  declared  the  issue  of  every  married  woman  to  be 
legitimate,  except  in  the  two  special  cases  of  the  impotency  of 
the  husband  and  his  absence  from  the  realm.2  But  in  Pendrdl 
v.  Pendrdl  the  absurd  doctrine  of  making  legitimacy  rest  con- 
clusively upon  the  fact  of  the  husband  being  infra  quatuor  maria 
was  exploded.3  Some  Scotch  jurists  resolve  the  grounds  upon 
which  the  presumption  of  legitimacy  may  be  overthrown  into 
two :  first,  that  the  husband  could  not  have  had  sexual  inter- 
course with  his  wife  by  reason  of  his  impotency ;  and  second, 
that,  having  the  power,  he  had  in  fact  no  sexual  intercourse 
with  her  at  the  time  of  the  conception.4  This  seems  to  mean, 
first,  that  the  husband  physically  could  not;  second,  that  he 
actually  did  not ;  but  does  not  the  second  exception  swallow  the 
first  ?  Perhaps  the  safer  course  is  to  abandon  all  attempts  to 
classify ;  and  to  hold,  with  Chancellor  Kent,  that  the  question 
of  the  legitimacy  or  illegitimacy  of  the  child  of  a  married  woman 

1  Dig.  lib.  1 ;  tit.  6, 1.  6;  1  Burge,  8  Stra.  Rep.  925;  2  Kent,  Cora.  211, 

Col.  &  For.  Laws,  60.  and  cases  cited;  Shelley  v. (1806), 

2  2  Kent,  Com.  210 ;  Co.  Litt.  244,  a ;  13  Ves.  56. 
1  Roll.  Abr.  358.  *  Fraser,  Parent  &  Child,  4. 

347 


§  225  THE   DOMESTIC   RELATIONS.  [PART   III. 

is  one  of  fact,  resting  on  decided  proof  as  to  the  non-access  of 
the  husband,  and  that  these  facts  must  generally  be  left  to  a 
jury  for  determination.1 

From  the  peculiarities  attending  the  case  of  access  or  non- 
access,  legitimacy  or  illegitimacy,  great  indulgence  is  to  be 
shown  by  the  courts.  Said  Lord  Erskine  :  "  The  law  of  Eng- 
land has  been  more  scrupulous  upon  the  subject  of  legitimacy 
than  any  other,  to  the  extent  even  of  disturbing  the  rules  of 
reason."  2  Still  later  was  it  asserted  in  English  chancery  that 
the  ancient  policy  of  the  law  remained  unaltered  ;  and  that  a 
child  born  of  a  married  woman  was  to  be  presumed  to  be  the 
child  of  the  husband,  unless  there  was  evidence,  beyond  all 
doubt,  that  the  husband  could  not  be  the  father.3  And  it  is  at 
this  day  admitted  that  the  presumption  thus  established  by 
law  is  not  to  be  rebutted  by  circumstances  which  only  create 
doubt  and  suspicion ;  but  that  the  evidence  against  it  ought  to 
be  strong,  distinct,  satisfactory,  and  conclusive  ; 4  that  mere  rumor 
is  insufficient  to  bastardize  issue  or  to  require  positive  proof 
either  of  legitimacy  or  wedlock.5 

So  far,  indeed,  is  legitimacy  favored  at  law,  that  neither  hus- 
band nor  wife  can  be  a  witness  to  prove  access  or  non-access, 
while  they  lived  together.  This  is  clearly  established  in  Eng- 
land;6 and  it  is  understood  to  be  the  law  likewise  in  this 
country,  though  the  decided  cases  seem  to  turn  upon  the  admis- 
sibility of  the  wife's  testimony,  and  the  modern  legislation  of 
any  State  may  affect  the  question.7     Such  evidence  is  treated 

1  2  Kent,  Com.  211  ;  3  P.  Wins.  275,  6  Rex  v.  Inhabitants  of  Sourton,  5 

276;    Harg.  n.   193  to  Co.  Litt.lib.  2;  Ad.  &  El.   188;  Patchett  v.  Ilolgate,  3 

Rex  v.  Luffe,  8  East,  193.     And  to  the  E.  L.   &  Eq.  100;  15  Jur.  308;  hire 

same  effect,  see  Blackburn  v.  Crawford's,  Rideout's  Trusts,  L.  R.  10  Eq.  41. 

8  Wall.  175.  7  2  Stark.  Evid.  §404;    1    Greenl. 

-  Shelley  v. ,  IS  Ves.  56.  Evid.  §  344;  Phillips  t».  Allen.  2  Allen, 

:i  Head  v.   Head,  1   Sim.  &  Stu.  150  453;  People  v.  Overseers,  15  Barb.  286; 

(1823);  Banbury  Peerage  Case,  lb.  153  ;  Parker  v.  "Way,  15  N.  11.45;  Dennison 

il  >■   Pendrell,  2  Stra.925.  v.  Page,  29  Penn.  St.  420.    The  father's 

4  Hargrave   v.    Hargrave,   9    Beav.  declarations  as  to  a  son's  illegitimacy 

552;   Archley    V.    Spring,  33  L.   J.   Ch.  are  competent.     Barnum  v.  Barnnm,  42 

845;   Plowi         Bo    ey,  8  Jttr. N. g>. 352 ;  Md.  251.    A  mother  may  testily  that 

10  W,  l;    332;    Fox  V.  Burke,  31  Minn,  she    was   always  true   to   the    reputed 

819 ;  Watts  v.  Owens,  62  Wis.  512.  father,  her  husband,  and  that  no  other 

6  Otthwein  v.  Thomas,  127  111.  554.  man  could  have    been  the  father  of  the 

848 


CHAP.  I.]        LEGITIMATE   CHILDREN   IN    GENERAL. 


§225 


as  contra  hoiios  mores.  Yet  the  wife  is  an  admissible  witness  to 
prove  her  own  adultery,  and  in  questions  of  pedigree ;  and  hus- 
band and  wife  may  prove  facts,  such  as  marriage  and  date  of 
the  child's  birth;  these  may  be  conclusive  as  to  illegitimacy.1 
Much  testimony,  extremely  delicate,  is  also  taken  in  bastardy 
and  divorce  proceedings.  When,  therefore,  the  courts  shut 
their  eyes  so  tightly  against  this  proof  of  access  or  non-access, 
perhaps  it  is  not  because  they  are  shocked,  but  lest  they  should 
see  illegitimacy  established. 

To  carry  the  presumption  of  legitimacy  so  far  as  to  disturb 
the  rules  of  reason  is  unjust ;  for  no  man  should  be  saddled 
with  the  obligations  of  children  which  clearly  do  not  belong  to 
him.  And  the  rule  of  evidence  in  the  English  courts  which 
required  extraneous  proof  of  impotency  of  the  husband,  or  his 
absence  from  the  realm,  has  been  severely  and  justly  criticised, 
not  without  some  good  results.2  The  decision  of  the  House  of 
Lords  in  the  celebrated  Banbury  Peerage  Case  proceeded  upon 
the  reasonable  assumption  that  moral  as  well  as  physical  impos- 
sibilities may  affect  the  rule  of  legitimacy.  Here  husband  and 
wife  occupied  the  same  house  at  the  very  time  the  child  must 
have  been  begotten,  and  no  case  of  impotency  was  made  out, 
and  yet  that  child  was  held  not  to  be  the  child  of  the  husband  ; 
for  the  testimony  by  collateral  proof  as  to  a  moral  impossibility 
was  sufficiently  strong  notwithstanding.3  This  case  was  con- 
child.  Warlick  v.  White,  76  N.  C.  v.  Hillenberg,  85  Va.  245 ;  Grant  v. 
175.  Sem ble,  such  mother's  truthful-  Mitchell,  83  Me.  23  ;  83  Wis.  250.  And 
ness  may  be  impeached,  but  not  her  so  is  the  adulterer's  own  admission.  83 
general  character  for  chastity.  76.  The  Me.  23.  The  husband  cannot  on  this  is- 
declarations  of  deceased  parents  are  sue  testify  as  to  his  own  non-access  while 
admissible  against  third  parties  to  living  with  his  wife,  though  he  had 
prove  the  legitimacy  of  their  children,  done  so  in  his  divorce  suit  and  gained 
Jackson  v.  Jackson  (1894),  Md.  While  it.  Shuman  v.  Shuman,  83  Wis.  250. 
inadmissible  witnesses  as  to  non-access,  1  See  1  Greenl.  Evid.  §§  343,  344  ; 
husband  and  wife  may  testify  in  cases  Caujolle  v.  Ferric,  23  N.  Y.  90.  And 
between  third  parties  as  to  the  time  of  see  Sale  v.  Crutchfield,  8  Bush,  636 ; 
their  own  marriage,  the  time  of  a  Dean  v.  State,  29  Ind.  483. 
child's  birth,  and  any  other  independent  22    Kent,   Com.    211,    n. ;    Fraser, 

facts  affecting  the  issue  of  legitimacy.     Parent  &  Child,  7. 
Janes's  Estate,  147  Penn.  St.  527.     The  3  1   Sim.  &  Stu.   153.     See  Nicolas 

wife's  adultery  is  insufficient  to  repel     on  Adulterine  Bastardy,  181,  a  volume 
the  paternity  presumption,  where  her    written  to  show  that  this  case  overturns 
husband  had  contemporaneous   access,     the  old  law  of  England. 
Goss   v.   Froman,   89    Ky.   318;    Scott 

349 


go 


^o 


THE   DOMESTIC   RELATIONS. 


[PART   III. 


firmed  by  another,  where  husband  and  wife  had  voluntarily 
separated,  but  the  husband  resided  at  a  distance  of  only  fifteen 
miles,  and  sometimes  visited  his  wife ;  and  the  wife  was  de- 
livered of  a  child,  which  was  pronounced  a  bastard,  from  evi- 
dence of  the  conduct  of  the  wife  and  her  paramour.  Here  it 
was  said,  "  The  case,  therefore,  comes  back  to  the  question  of 
fact."  1  Still  later  cases  strengthen  the  same  doctrine.2  Impo- 
teney  of  the  husband,  and  his  absence  from  the  realm,  suggest 
then  but  two  classes  of  cases,  and  those  not  the  only  ones,  where 
children  may  now  be  pronounced  bastards.3 

In  this  country,  cases  have  not  unfrequently  arisen  which 
involve  the  legitimacy  of  offspring  ;  and  the  more  reasonable 
doctrine  favors  legitimacy  to  about  the  same  extent  as  the  later 
English  decisions.4  The  presumption  of  legitimacy  is  strongly 
carried,  as  the  cases  below  cited  indicate  ;  though  not  so  far  as 
to  exclude  proof  of  non-access  of  the  husband  or  such  other 
rational  facts  as  might  rebut  this  presumption,  and  show  that 
the  child  of  a  married  woman  was  in  reality  a  bastard.5     Doubt 


1  Morris  v.  Davies,  5  CI.  &  Fin.  463. 
And  see  Barony  of  Saye  &  Sele,  1  CI. 
&  Fin.  N.  s.  507 ;  Sibbett  v.  Ainsley,  3 
L.  T.  x.  s.  583,  Q.  B. ;  Fraser,  Parent 
&  Child,  8  ;  King  v.  Luffe,  8  East,  193  ; 
also  Hitching  v.  Eardley,  L.  R.  2  P. 
&  I).  248,  as  to  admitting  declarations 
of  the  person  whose  legitimacy  is  at 
issue. 

-  Bosvile  v.  Attorney-General,  12 
F.  1).  177.  Here  a  child  had  been  born 
two  hundred  and  seventy-six  days  after 
the  last  opportunity  of  intercourse  be- 
:  the  husband  and  wife,  <  >r  within 
a  very  few  days  later  than  the  usual 
period  of  gestation  ;  and  there  was  evi- 
dence tending  to  show  that  the  wife 
i  d  i  he  child  as  the  offspring  of 
her  paramour.  A  still  stronger  case  is 
Burnabj  v.  Bailee,  42  Ch.  I).  282. 

■;  Hargrave  v.  Hargrave,  9  Bear. 
552  "  I  apprehend,"  said  Lord  Lang- 
dale,  "  '  hat  e\  idence  of  every  kind, 
direct  or  presumptive,  may  be  adduced, 
for  the  purpose  of  showing  the  absence 
of  lexual  intercourse  which,  in  cases 
where  there  has  been  some  society,  in- 

350 


tercourse,  or  access,  has  been  called 
non-generating  access.  We  have,  there- 
fore, to  attend  to  the  conduct  and  the 
feelings,  as  evidenced  by  the  conduct 
of  the  parties  towards  each  other  and 
the  offspring,  and  even  to  the  declara- 
tions accompanying  acts,  which  are 
properly  evidence.  Such  circumstances 
are  of  no  avail  against  proper  evidence 
of  generating  access  ;  but  they  may  have 
weight,  when  the  effect  of  that  evi- 
dence is  doubtful.  If  the  weight  is  not 
such  as  to  convince  the  minds  of  those 
who  have  to  determine  the  matter,  the 
effect  may  only  tend  to  shake,  without 
removing,  the  presumption  of  legiti- 
macy, which  in  such  a  case  must 
prevail." 

1  Patterson  v.  Gaines,  6  How.  (U.  S.) 
582;  2  Kent,  Com.  211,  and  cases  cited; 
Hemmenway  v.  Towner,  1  Allen,  209; 
Van  Aernam  v.  Van  Aernam,  1  Barb. 
Ch.  375;   Wright  v.  Hicks,  15  Geo.  160. 

5  See  Y:ui  Aernam  r.  Van  Aernam, 
i  Barb.  Ch.  375;  Kleinert  v.  Ehlers,  88 
Penn.  St.  439;  Phillips  v.  Allen,  2 
Allen,  453;  Hemmenway  v.  Towner,  1 


CHAP.  I.]         LEGITIMATE   CHILDREN    IN   GENERAL.  §  226 


and  suspicion  or  unfavorable  rumor  furnish  no  sufficient  ground 
for  adjudging  illegitimacy.  In  short,  the  presumption  in  favor 
of  the  legitimacy  of  a  child  born  in  wedlock  is  not  to  be  taken 
as  a  presumption  of  law,  but  a  presumption  which  may  be  re- 
butted by  evidence  clear  and  conclusive,  though  not  resting 
merely  on  a  balance  of  probabilities.1 

§  226.  Legitimation  of  Illicit  Offspring  by  Subsequent  Mar- 
riage. —  In  respect  of  the  legitimation  of  offspring  by  the  sub- 
sequent marriage  of  their  parents,  the  civil  and  common-law 
systems  widely  differ.  By  the  civil  and  canon  laws,  two  per- 
sons who  had  a  child  as  the  fruit  of  their  illicit  intercourse 
might  afterwards  marry,  and  thus  place  their  child  to  all  intents 
and  purposes  on  the  same  footing  as  their  subsequent  offspring, 
born  in  lawful  wedlock.2  But  the  common  law,  though  not  so 
strict  as  to  require  that  the  child  should  be  begotten  of  the 
marriage,   rendered   it  indispensable  that  the  birth  should  be 


Allen,  209  ;  State  v.  Herman,  13  Ire. 
502;  Tate  v.  Pene,  19  Martin,  548; 
Cannon  v.  Cannon,  7  Humph.  410; 
State  v.  Shumpert,  1  S.  C.  N.  s.  85  ; 
Strode  v.  Magowan,  2  Bush,  621  ;  State 
v.  Lavin,  80  Iowa,  555  ;  Blackburn  v. 
Crawfords,  3  Wall.  175;  Wilson  v. 
Babb,  18  S.  C.  59.  Collateral  proof  of 
legitimacy  is  not  to  be  favored.  See 
Kearney  v.  Deun,  15  Wall.  51.  But 
under  suitable  circumstances  the  grant 
of  letters  of  administration  may  be 
conclusive  in  other  courts.  Caujolle  v. 
Ferrie',  13  Wall.  465.     See  cases,  §  225. 

Formerly,  in  portions  of  the  United 
States,  slave  marriages  were  deemed 
unlawful,  and  the  offspring  illegitimate. 
Timmins  v.  Lacy,  30  Tex.  115.  But 
slavery  no  longer  exists,  and  the  ten- 
dency of  our  legislation  is  now  to 
uphold  as  far  as  possible  former  mar- 
riages of  colored  persons,  and  the  legiti- 
macy of  their  offspring,  cohabitation 
continuing.  See  White  v.  Ross,  40 
Geo.  339  ;  Allen  v.  Allen,  8  Bush,  490 ; 
Gregley  v.  Jackson,  38  Ark.  487  ;  34 
La.  Ann.  265 ;  Clements  v.  Crawford, 
42  Tex.  601  ;  Daniel  v.  Sams,  17  Fla. 
487  ;  sujira,  §  17. 

To  impugn  a  child's  paternity,  repu- 


tation of  the  mother  for  unchastity  is 
admissible,  if  at  all,  only  as  to  unchas- 
tity prior  to  connection  with  the  re- 
puted father.  Morris  v.  Swaney,  7 
Heisk.  591  ;  Warlick  v.  White,  76  N.  C. 
175.  If  the  son  was  colored  and  the 
mother  an  Indian,  the  color  will  be 
presumed  to  have  been  derived  from 
the  mother  rather  than  disturb  the  pre- 
sumption of  legitimacy.  Illinois  Land 
Co.  v.  Bonner,  75  111.  315.  But  otherwise 
where  a  mulatto  child  is  born  of  a  white 
woman  whose  husband  is  white ;  and 
here  expert  medical  testimony  is  proper 
as  to  the  natural  impossibility  of  white 
parentage  on  both  sides.  Bullock  v. 
Knox,  96  Ala.  195.  Where  parents 
and  other  members  of  the  family  have 
long  and  consistently  treated  a  child  as 
legitimate,  this  affords  strong  presump- 
tion of  legitimacy  in  any  case.  75  111. 
315  ;  Gaines  v.  Mining  Co.,  32  N  J.  Eq. 
86.  But  not  proof  indisputable.  Bus- 
som  v.  Forsyth,  32  N.  J.  Eq.  277. 

And    as   to   proof  of   marriage,  see 
also  Schouler,  IIus.  &  Wife,  §§  38,  39. 

1  See  12  App.  Cas.  312;  §  277. 

2  2  Kent,  Com.  208 ;  1   Burge,  CoL 
&  For.  Laws,  92;  [1894]  App.  C.  165. 

351 


S  226  THE   DOMESTIC    RELATIONS.  [PART   III. 

after  the  ceremony.1  Let  us  notice  this  point  of  difference  at 
some  length. 

It  appears  that  the  law  of  legitimation  per  subsequens  matri- 
monium is  of  Roman  origin ;  introduced  and  promulgated  by 
the  first  Christian  Emperor,  Constantine,  as  history  alleges, 
at  the  instigation  of  the  clergy.  This  was  an  innovation  upon 
the  earlier  Soman  system;  and  the  object  of  its  introduction 
was  to  put  down  that  matrimonial  concubinage  which  had  be- 
come so  universal  in  the  Empire.2  Justinian  afterwards  made 
this  law  perpetual.3  Its  first  appearance  in  the  canon  law  is 
found  in  two  rescripts  of  Pope  Alexander  III.,  preserved  in  the 
Decretals  of  Gregory,  and  issued  in  1180  and  1172.4  These  ex- 
tended the  benefits  of  the  marriage  to  the  offspring  of  carnal 
love,  and  not  merely  to  the  issue  of  systematic  concubinage. 
This  law  of  legitimation  was  introduced  into  Scotland  within 
the  range  of  authentic  history.5  It  is  also  admitted,  with  dif- 
ferent modifications,  into  the  codes  of  France,  Spain,  Germany, 
and  most  other  countries  in  Europe.6 

The  principle  to  which  the  law  of  legitimation  per  subsequens 
matrimonium  is  to  be  referred  has  been  a  subject  of  controversy. 
The  canonists  based  the  law  not  on  general  views  of  expediency 
and  justice,  but  upon  a  fiction  which  they  adopted  in  order  to 
reconcile  the  new  law  with  established  rules ;  for,  assuming 
that,  as  a  general  rule,  children  are  not  legitimate  unless  born 
in  lawful  wedlock,  they  declared  that,  by  a  fiction  of  law,  the 
parents  were  married  when  the  child  was  born.  Such  reason- 
ing, by  no  means  uncommon  in  days  when  the  wise  saw  more 
clearly  what  was  right  than  why  it  was  so,  has  not  stood  the 


1  I   BL   Com.  454.     If  the  child  he  8  Taylor's  Civil  Law,  272  ;  Fraser, 

horn  after  the  ceremony,  even  though  Parent  &  Child,  32;  1  Burge,  Col.   & 

it    be  but  ;i   few  weeks    Liter,  the  pre-  For.  Laws,  92,  93. 
sumption  of  paternity  against  the  hus-         4  Deer.  IV.  17,  1;  IV.   17,6,  cited 

band    is    almost    irresistible,   and    t  ho  in  Fraser,  Parent  &  Child,  33.     "  Tanta 

burden  is  on  him  to  show  affirmatively  est  enim  vis  sacramenti   (matrimonii) 

to  i  he  conl  rary,  in  order  to  establish  the  ut  qui  antea  sunl  geniti  post  contractum 

child's  status  as  illegitimate.    Gardner  matrimonium  habeantur  legitimi." 
v.  Gardner,  2  App.  Cas.  723.    Cf.  In  re         °  Fraser,  Parents  Child,  32,  33. 
Corlass,  I  C/b    D.  460.  6  1  Burge,  Col.  &  For.  Laws,  101. 

-  "  Licita  consuetudo  semimatrirno- 
Diurn."     Cod.  lib.  6,  tit.  57. 

352 


CHAP.  I.]  LEGITIMATE   CHILDREN    IN   GENERAL.  §  226 

test  of  modern  logic  ;  and  the  Scotch  courts  have  placed  the 
rule  once  more  where  its  imperial  founders  left  it;  namely,  on 
the  ground  of  general  policy  and  justice,  "  Legitimation  is 
thought  to  be  recommended  by  these  considerations  of  equity 
and  justice,  that  it  tends  to  encourage  what  is  at  first  irregular 
and  injurious  to  society,  into  the  honorable  relation  of  lawful 
matrimony ;  and  that  it  prevents  those  unseemly  disorders  in 
families  which  are  produced  where  the  eldei'-born  children  of 
the  same  parents  are  left  under  the  stain  of  bastardy,  and  the 
younger  enjoy  the  status  of  legitimacy."  x 

This  doctrine  of  the  civil  law  has  found  great  favor  in  the 
United  States.  It  has  prevailed  for  many  years  in  the  States 
of  Vermont,  Maryland,  Virginia,  Georgia,  Alabama,  Mississippi, 
Louisiana,  Kentucky,  Missouri,  Indiana,  and  Ohio.2  So  in 
Massachusetts,  bastards  are  to  be  considered  legitimate  after 
the  intermarriage  of  their  parents  and  recognition  by  the 
fatber.3  And  similar  statutes  are  to  be  found  in  Maine,  New 
Hampshire,  Pennsylvania,  Vermont,  Tennessee,  and  elsewhere.4 
Tbere  is,  however,  no  legal  presumption  that  a  man  who  marries 
the  mother  of  a  bastard  child  was  its  actual  father ; 5  and  some 
recognition  of  paternity  or  else  an  adoption  is  a  usual  element 
in  intermarriages  of  this  sort.6 

1  Fraser,  Parent  &  Child,  35;  Munro  liams,  11  Lea,  652 ;  Brock  v.  State,  85 
v.  Munro,  1  Rob.  H.  L.  Scotch  App.  492.  Iiid.  397.     In  some  States  still  another 

2  Griffith's  Law  Reg.  passim ;  1  mode  of  legitimation,  for  inheritance, 
Purge,  Col.  &  For.  Laws,  101.  This  if  not  for  all  other  purposes,  is  per- 
provision  protects  the  offspring  of  an  mitted  by  law  as  to  such  offspring; 
adulterous  connection  as  well  as  that  namely,  by  the  father's  formal  decla- 
of  parents  who  were  free  to  contract  ration,  or  that  of  both  parents,  properly 
marriage  when  the  children  were  born,  attested,  which  is  filed  in  court  and  re- 
Hawbecker  v.  Hawbecker,  43  Md.  516.  corded.     This  might  be  called  legitima- 

8  Mass  Gen.  Sts.  1860,  c.  91.  tion  by  public  or  judicial  record  after 

4  Maine  Laws,  1852,  c.  266;  Penn.  intermarriage  of  parents.     See  Linden 

Laws,    1857,    May    14;    Vermont,    R.  v.  Lingen,  45    Ala.  410,   414;   Pina  v. 

S.    1863,    c.    56;  "Stimson,    Stat.  Law,  Peck,   31    Cal.    359;    Talbot   v.    Hunt, 

§§  6631-6634;  Ind.   R.  S.  1862,  c.  46.  28  La.  Ann.  3.     Recognition  of  a  less 

And   see    Graham   v.   Bennett,    2    Cal.  formal  character  suffices  for  purposes  of 

503;  Starr  v.  Peck,  1  Hill  (N.  Y.),  270;  inheritance  in  Iowa.     Crane   v.  Crane, 

Sleigh  v.    Strider,    5    Call,   439;    Dan-  31  Iowa,  296. 

nelli  v.  Danelli,  4   Bush,    51  ;    Adams  5  Janes's  Estate,  147  Penn.  St.  527  ; 

v.   Adams,   36   Geo.    236;    Morgan    v.  Brewer  v.  Hamor,  83  Me.  251;  81  Cal. 

Perry,  51   N.   H.  559  ;    Brown   v.  Bel-  408. 

marde,  4  Ivans.  41  ;  Williams  v.  Wil-  6  If  the   subsequent    marriage   was 

23  353 


§  227  THE   DOMESTIC    RELATION'S.  [PART   III. 

§  227.  Legitimation  by  Subsequent  Marriage  not  favored  in 
England.  —  On  the  other  hand,  the  English  law  has  very 
strongly  opposed  the  whole  doctrine  of  legitimation  per  sub- 
sequens  matrimonium.  Even  so  far  back  as  the  reign  of 
Henry  III.  is  found  a  memorable  instance  where  the  peers 
refused  to  change  the  law  in  this  respect,  when  urged  to  do 
so  by  the  English  bishops;  declaring  with  one  voice,  quod 
nolunt  leges  Anglice  mutare,  quce  hue  usque  usitatce  sunt  et  ap- 
rprobatce.1  Jealousy  of  canonical  influence  may  partially  ac- 
count for  this  conduct,  if  not  prejudice  against  the  civil  law 
generally.  Certain  it  is  that  most  English  jurists  have  ever 
since  stubbornly  maintained  the  superiority  of  their  own  max- 
ims, which  place  the  immutability  of  the  marriage  relation 
above  all  the  tender  promptings  of  humanity  towards  innocent 
sufferers.  Even  Blackstone  vigorously  assails  the  civil-law  doc- 
trine, urging  against  it  several  rather  artificial  objections,  in  the 
apparent  belief  that  legal  consistency  is  better  than  natural 
justice.2  But  on  the  other  hand,  Selden  mentions  that  the 
children  of  John  of  Gaunt,  Duke  of  Lancaster,  were  legitimated 
by  an  act  of  Parliament,  in  the  reign  of  Eichard  II.,  founded 
on  some  obscure  common-law  custom.3 

Upon  such  principles  it  has  been  decided  by  the  House  of 
Lords,  that  where  a  marriage  is  in  its  inception  unlawful,  being 
at  a  time  when  the  woman's  first  husband  must  have  been 
alive,  children  born  even  after  the  time  when  it  was  presumed 
that  the  first  husband  had  died,  must  be  pronounced  illegiti- 
mate;  the  mere  continuance  of  the  cohabitation  after  that 
event  being  insufficient,  without  celebration,  to  change  the 
character  of  the  connection.4  Nor  will  an  absolute  presump- 
tion of  law  be  raised  as  to  the  continuance  of  life  to  support 
such  legitimacy  ;  for  in  every  instance  the  circumstances  of  the 
must  be  considered.5     And  so  strict  is  the  rule,  that  where 

a    valid   one,   the   child   continues         8  Selden  on  Fleta,  c.  9,  §  2     And  see 

bastardized.      Adams    v.  Adams,    154  Barrington,  p.  38 ;  2  Kent,  Com.  209. 
M;i--   290.  4  Lapsley  v.  Grierson  (1848),  I  CI. 

1  Siat..  r.f  Morton,  20  Hen.  III.  &  Fin.  tf.  b,  198;  Cunningham  v.  Cun- 
i     9     2   Kent,  Com.  209;    I   Bl.  Com.  ningham,  2  Dow,  482. 

456,  ■'  Lapsley  v.  Grierson,  lb., explaining 

2  l  Bl,  Com,  454,  455.  Hex  v.  Twyning,  2  B.  &  A.  386. 

354 


CHAP.  I.]  LEGITIMATE   CHILDREN   IN   GENERAL.  §  228 

a  person,  born  a  bastard,  becomes,  by  the  subsequent  marriage 
of  his  parents,  legitimate  according  to  the  laws  of  the  country 
in  which  he  was  born,  he  is  still  a  bastard,  so  far  as  regards  the 
inheritance  of  lands  in  England.1  But  testamentary  provisions 
for  illegitimate  offspring  as  "children"  receive  an  increasing 
favor  in  the  English  courts ;  and  this  disability  of  bastards  to 
"  inherit "  English  lands,  notwithstanding  a  subsequent  marriage, 
is  now  confined,  moreover,  to  descents  upon  intestacy.2 

§  227  a.  Legitimacy  of  Offspring  born  after  Divorce.  —  As  to 
the  status  of  children  born  after  divorce,  partial  or  complete, 
little  can  be  stated  from  the  books ;  for  such  divorces  hardly 
existed  at  the  common  law.3  They  are  probably  illegitimate 
'prima  facie,  if  born  of  the  divorced  mother  within  an  unrea- 
sonable time  after  separation.4  A  remarriage  by  a  divorced 
party  in  a  state  or  country  where  such  marriages  are  not 
prohibited  will  make  the  offspring  of  such  remarriage  legiti- 
mate in  spite  of  local  prohibitions  where  the  divorce  was 
decreed.5 

§  228.  Legitimacy  in  Marriages  Null  but  Bona  Fide  Contracted. 
—  The  issue  of  marriages  rendered  null  and  void  are  on  general 
principles  necessarily  illegitimate.  Opposed  to  this  is  the  civil- 
law  doctrine  of  putative  marriages,  first  introduced  into  the 
canon  law  by  Pope  Innocent  III. ;  which  upholds  the  legitimacy 
of  the  children  in  cases  where  the  parties,  or  either  of  them, 
bona  fide  believing  that  they  could  marry,  had  entered  into  the 
contract  while  there  was  some  unknown  impediment  existing.6 
This  subject  is  regulated  by  statute  to  a  great  extent  in  this 

1  Doe    d.   Birtwhistle  v.  Vardill,   6         2  Grey  v.  Earl  of  Stamford,  [1892] 

Bing.    N.    C.  385;    7    CI.    &    Fin.    895.  3  Ch.  88;   §231. 
And  see  c.  6,  post.  3  See  Husband  &  Wife,  supra,  §  22  ; 

The    only   exception    permitted    by  2  Bishop,  Mar.  &  Div.  5th  ed.  §  559  ; 

the   common   law   under    this    general  Montgomery  v.  Montgomery,  3  Barb, 

head  was  that  where  the  child  whose  Ch.  132. 

parents   subsequently  married   entered  4  St.  George  v.  St.  Margaret,  1  Salk. 

into   possession    of    his   father's   lands  123  ;  2  Bishop,  Mar.  &  Div.  §  740. 
after  his  father's  death,  and  kept  pos-  5  Moore  v.  Hegeman,  92  N.  Y.  521. 

session   until   his   own   death,   so   that  6  Fraser,  Parent  &  Child,  22  et  seq.  ; 

they  descended   to   his   own    issue,  no  1   Burge,  Col.  &  For.  Laws,  9G.      See 

disturbance  of  title  was  permitted  on  Lapsley  v.  Grierson,  1  CI.  &  Fin.  n    8. 

the   plea   of   such  child's  illegitimacy.  498,  cited  supra. 
Bussom  v.  Forsyth,  32  N.  J.  Eq.  277. 

oQ£> 


§  230  THE   DOMESTIC    RELATIONS.  [PART   III. 

country ;  and  here  again  our  system  conforms  to  the  civil  rather 
than  the  common  law.1 

§  229.  Legitimation  by  the  State  or  Sovereign.  —  Legitima- 
tion by  rescript  of  the  Emperor  appears  in  the  Institutes  of 
Justinian.2  Still  later  did  the  Pope  assume  the  power  to  grant 
the  status  of  legitimacy ;  and  in  many  of  the  canonical  dispen- 
sations occur  clauses  of  this  sort.3  The  effect  of  these  high- 
sounding  clauses  is  now  of  little  consequence.4  The  English 
Parliament,  by  virtue  of  its  transcendent  power,  may  render  a 
bastard  legitimate  and  capable  of  inheriting.5  This  same  power 
has  been  claimed  for  the  legislatures  of  the  United  States.6  And 
except  so  far  as  legislative  acts  may  come  under  constitutional 
restraints  against  impairing  the  obligation  of  contracts,  there 
seems  no  reason  why  they  should  not  be  uniformly  upheld. 

§  230.  Domicile  of  Children  ;  Citizenship,  &c. —  The  domicile 
of  a  child's  origin,  or  the  domicile  at  any  time  of  his  minority,  is 
to  be  determined  by  the  domicile  of  his  parents ;  or,  to  speak 
more  strictly,  of  his  father,  if  the  latter  be  alive  and  not  legally 
deprived  of  his  paternal  rights.  We  speak  at  this  time  only  of 
legitimate  or  of  legitimated  or  adopted  children.7  The  domicile 
of  origin  remains  until  another  is  lawfully  acquired.  And  since 
minors  are  not  sui  juris,  they  may  not  change  their  domicile  dur- 
ing their  minority,  though  they  may  when  of  full  age  ;  hence 
they  retain  during  infancy  the  domicile  of  their  parents  ;  if  the 
parents  change  their  domicile,  that  of  the  infant  children  follows 
it ;  and  if  the  father  dies,  his  last  domicile  is  that  of  the  infant 
children.8     The  surviving  mother  may  change  the  domicile  of 

1  See  supra,  §  22.     And  see  Graham  he  presumed  that  a  statute  (if  this  kind 

v.Bennett,  2  Cal.  503.    Yet  there  is  a  confers  legitimacy  only  so  far  as  to 

rase,  that  of  Sir  Ralph   Sadlier,  where  give  the  capacity  to  inherit.     Grubb's 

Parliament   gave    relief.    See  Nicolas.  Appeal,  58  Penn.  St.  55. 

Adult.  Hast,  fil-63;  Eraser,  Parent  &  7  The  role  for  natural-born  children 

Child,  24;    Burnett's  History,  honk   l.  of  wedlock  applies  to  children  legally 

c.  19;  Riddell,  Peer.  &  Cons.  Law,  4i'l.  adopted,  except  that  the  child's  domicile 

1   Nov.  74,  c.  1,  2;  and  89,  c.  9.  in  this  latter  case  is  that  of  the  adopt- 

r,  Parent  &  Child,  43.  ing   parent   at  the   time  of    adoption. 

1  lb.  Van    Matre  v.   Sankey,  148   111.   536; 

''   I   I'd.  Coin.  459.     And  see  Stat.  6  Woodward    v.    Woodward,    87    Tenn. 

Will.  IV.  c.22.  644. 

"   Beall  v.  BeaU,  8  Ga.  210j  Vidal  v.  8  Story,  Confl.  Laws,  §§  45,  46,  and 

Commajere,  i'i  La.  Ann.  516.     It  will  cases  cited;  l  Burge, Col. &  For.  Laws, 
356 


CHAP.  I.]  LEGITIMATE   CHILDREN    IN   GENERAL.  §  230 


her  minor  children,  provided  she  do  so  without  fraudulent 
views  to  the  succession  of  their  estate ;  though  it  would  appear 
that  she  cannot  change  it  after  her  remarriage.1  In  general, 
dwelling  at  a  certain  place  is  prima  facie,  proof  that  a  person 
is  domiciled  there ;  and  the  home  of  a  husband,  reasonably 
chosen  in  his  rightful  discretion,  is  the  legal  domicile  of  wife 
and  young  children,  wherever  he  may  choose  to  fix  it,1  This 
question  of  domicile  may  be  of  importance  in  determining  the 
grant  of  administration  on  a  deceased  infant's  estate,  or  if  the 
child  be  alive,  of  his  guardian's  appointment. 

Prima  facie,  the  infant's  residence  or  domicile  is  that  of  his 
parent,  and  such  it  will  remain  during  minority,  in  spite  of  his 
temporary  absence  at  school  or  elsewhere.  Nor  can  he  of 
his  own  motion  acquire  a  new  domicile,  since  he  is  not  a  per- 
son sui  juris?  But  his  domicile  may  be  changed  by  his  father, 
if  he  has  one ;  otherwise,  according  to  the  best  modern  authori- 
ties, by  the  surviving  mother  until  her  remarriage  ;  and  perhaps 
even  by  the  guardian  himself,  although  not  a  relative,  provided 
he  act  in  good  faith.4  The  intent  of  the  parent  or  guardian  in 
such  cases  is  always  material;  but  this  intent  is  to  be  deter- 
mined by  facts.  The  original  domicile  of  an  infant  is  that  of 
his  parents  at  the  time  of  his  birth.5  And  even  an  emancipated 
minor  is  not  usually  in  a  position  to  acquire  a  legal  domicile 
while  his  minority  lasts.6     The  rule  of  a  minor's  citizenship 

ling  her  marriage.     Blumeuthal  v.  Tan- 
nenholz,  .31  N.  J.  Eq.  194. 

Following  the  usual  rule,  however, 
the  real  estate,  eveu  of  children,  de- 
scends  according  to  the  law  of  situs,  and 
the  personal  according  to  the  domicile. 

2  Supra,  §§  37,  38;  Luck  v.  Luck, 
92  Cal.  653. 

3  Maophers.  Inf.  579 ;  Brown  v 
Lynch,  2  Bradf.  214;  Story,  Confl 
Laws,  §  46. 

4  1'otinger  r.  Wightman,  3  Mer.  67  ; 
2  Kent,  Com.  227,  430  ;  1  Biuge,  Col.  & 
For.  Laws,  39 ;  Brown  v.  Lynch,  2 
Bradf.  214. 

5  See,  further,  post,  Part  IV.  c.  5,  as 
to  Guardian  and  Ward. 

6  North  Yarmouth  v.  Portland,  73 
Me.  108.     See  lb.  583  ;  §  267. 

357 


33  ;  Ahington  p.  North  Bridgewater,  23 
Pick.  170;  Taylor  v.  Jeter,  33  Ga.  195; 
Daniel  v.  Hill,  52  Ala.  430;  Wharton, 
Confl.  §  41.  But  see  Ishau  v.  Gibbons, 
1  Bradf.  Sur.  70;  Somerville  v.  Somer- 
ville,  5  Ves.  750. 

1  Potinger  v.  Wightman,  3  Mer.  67  ; 
1  Burge,  Col.  &  For.  Laws,  39  ;  Brown 
v.  Lynch,  2  Bradf.  Sur.  214;  Carlisle  ». 
Tuttle,  30  Ala.  613.  The  widow's  re- 
moval from  the  homestead  must  nut 
prejudice  the  children's  claim  thereto. 
Showers  v.  Pobinsou,  43  Mich.  502. 
After  the  mother  remarries,  the  domi- 
cile of  the  child  ceases  to  change,  and 
does  not  follow  that  of  the  stepfather. 
Byall  v.  Kennedy,  40  N.  Y.  Super.  347. 
A  female  infant  cannot  change  her  own 
domicile,  even  for  the  purpose  of  annul- 


§  281  THE   DOMESTIC    RELATIONS.  [PART   III. 

corresponds ;  and  where  the  parent  removes  to  another  State  or 
country,  the  minor  child's  citizenship  changes,  though  he  be 
temporarily  left  in  the  former  jurisdiction.1 

§  231.  Conflict  of  Laws  as  to  Domicile  and  Legitimacy.  — ■ 
Some  writers  have  said  that,  when  the  laws  of  two  countries  are 
in  conflict,  the  legitimacy  or  illegitimacy  of  children  is  to  be 
determined  by  the  domicile  of  origin.2  Others,  again,  that  it  is 
dependent  upon  the  lex  loci  of  marriage.3  Between  these  writ- 
ers there  is  no  real  discrepancy ;  for  in  every  such  case  two 
inquiries  are  involved,  the  one  whether  the  marriage  was  in 
itself  lawful,  the  other  whether  the  child  was  legitimate  by  the 
marriage.  Of  the  conflict  of  laws  regarding  marriage  we  have 
already  spoken.4  That  involving  the  status  of  legitimacy  de- 
mands further  consideration. 

A  conflict  manifestly  arises  between  the  laws  of  domicile  of 
origin  and  subsequent  marriage,  and  the  laws  of  the  actual 
domicile  or  situs  of  property,  where  those  of  the  one  country 
admit  legitimation  per  subsequcns  matrimonium,  and  those  of  the 
other  do  not.  As,  for  instance,  where  children  are  born,  and 
their  parents  afterwards  intermarry  in  certain  of  the  United 
Slates  or  in  Scotland,  and  then  remove  with  their  children  to 
England ;  or  where  such  children  are  deemed  to  have  acquired 
property  rights  in  the  last-named  country.  On  this  point  there 
is  much  diversity  of  opinion.  And  the  English  courts  long 
maintained  their  distinctive  policy  with  considerable  zeal  in  all 
doubtful  cases.  Thus  particularly  was  this  done  in  the  case  of 
Birtwhistle  v.  Vardill,  where  a  child,  legitimate  to  all  purposes 
in  Scotland,  was  sternly  denied  the  full  rights  of  a  lawful  child 
as  to  inheritance  in  England.5  Yet  the  law  of  foreign  countries 
as  to  legitimacy  is  so  far  respected  in  England  that  a  person 
illegitimate  by  the  law  of  his  domicile  of  birth  will  be  held  ille- 

1  40  Fed.  \l.  257.     As  to  the  inchoate  5  7  CI.  &  Fin.  895;  4  Jur.  107fi  ;  lb. 

citizenship  gained   under  the   father's  5  B.  &  C.  438 ;  Story,  Confl.  Laws,  §  93 

declared    intention,  see    Boyd    v.    Ne-  et  seq.,  where  the    doctrine    of    Birt- 

■   i  13  I'.  S.  185.  whistle  v.  Vardill  is  strongly  combated. 

■i  I  Barge,  Col  &  Fur.  Laws,  ill;  Sec  Boyes  v.   Bedale,   12  W.   R.  232, 

!         r,  Parent  &  Child,  45.  before   Wood,    V.    C.j    Story,    Confl. 

,  Confl.  Laws,  §  105;  Whar-  Laws,  6th  ed.  §98  »■.,  n.  by  Kedfield. 

ton,  Confl.  §§  85,  41.  And   see  (Juodmun   v.  (emdnuin,  3  Gif. 

1  Bee  :  222,  »'■"■.  643. 

858 


CHAP.  I.]         LEGITIMATE   CHILDREN    IN   GENERAL. 


§231 


gitiinate  in  England.1  The  latest  English  cases,  however,  so 
far  recede  from  this  sturdy  doctrine  as  to  confine  the  application 
of  Birtwhidlc  v.  Vardill  to  claims  of  intestate  succession  to 
real  property  in  England  ;2  and  on  the  other  hand,  a  bequest  of 
personalty  in  an  English  will  to  the  children  of  a  foreigner  is 
now  construed  to  mean  to  his  legitimate  children,  —  that  is  to 
say,  on  international  principle,  treating  all  children  as  legiti- 
mate whose  legitimacy  is  established  by  the  law  of  their 
father's  domicile.3  Our  recent  American  cases  have  repudiated 
the  illiberal  English  doctrine  with  little  care  to  discriminate 
between  the  kinds  of  property.* 

The  doctrine  of  general  writers  is  that  the  status  of  le^iti- 
macy  or  illegitimacy,  or  the  capacity  to  become  legitimate  per 
subsequens  matrimonium,  is  governed  by  the  law  of  the  domicile 
of  the  child's  origin.5  And  since  the  domicile  of  origin  is  that 
of  the  father,  the  great  leading  fact  to  be  ascertained  in  such 
inquiries  will  be  generally  the  domicile  of  the  father.6  A  per- 
son born  before  wedlock,  who  in  the  country  of  his  birth  is 
considered  illegitimate,  will  not  by  a  subsequent  marriage  of 
his  parents  in  another  country,  by  whose  laws  such  a  marriage 
would  make  him  legitimate,  cease  to  be  illegitimate  in  the  coun- 
try of  his  birth.7     On  the  other  hand,  without  a  subsequent 


1  Munro  v.  Saunders,  6  Bligh,  468 ; 
cases  cited  in  Birtwliistle  v.  Vardill,  9 
Bligh,  52.  But  a  foreign  legitimation 
was  so  far  respected  in  a  late  case  that 
a  succession  tax  was  not  laid  upon  the 
child  as  a  stranger  in  blood.  Skottowe 
17.  Young,  L.  R.  11  Eq.  474. 

In  this  country  the  doctrine  of  Birt- 
whistle  v.  Vardill  is  sometimes,  though 
rarely,  followed  in  matters  of  inherit- 
ance. Smith  i'.  Derr,  34  Penn.  St.  126; 
Stoltz  v.  Daering,  112  III.  234.  And 
this,  notwithstanding  the  child  was  he- 
gotten  in  the  State  where  the  question 
of  inheritance  afterwards  arose.  Lin- 
gen  v.  Lingeu,  45  Ala.  410. 

2  Grey  v.  Earl  of  Stamford,  [1892] 
3  Ch.  88. 

3  Andros  v.  Andros,  24  Ch.  I).  637  ; 
Goodman's  Trusts,  17  Ch.  D.  266. 

4  When  an  illegitimate  child  has,  by 


the  subsequent  marriage  of  his  parents, 
become  legitimate  by  the  laws  of  the 
State  or  country  where  such  marriage 
took  place,  and  the  parents  were  domi- 
ciled, he  is  thereafter  legitimate  every- 
where, and  entitled  to  all  the  rights 
flowing  from  that  status,  including  the 
right  to  inherit  real  or  personal  es- 
tate. Miller  v.  Miller,  91  N.  Y.  315. 
The  same  rule  applies  to  a  legally 
"  adopted  "  child  under  the  local  statute 
in  the  State  or  country  of  domicile,  even 
though  the  child  was  an  illegitimate 
one  thereby  legitimated.  Blythe  v. 
Ayres,  96  Cal.  533. 

5  1  Burge,  Col.  &  For.  Laws,  111. 
And  see  Skottowe  ?;.  Young,  supra.  As 
to  conflict  of  laws  in  adoption,  see  §  232, 
note. 

6  Fraser,  Parent  &  Child,  45. 

7  Story,   Confl.   Laws,  §  106.      See 

359 


§  232  THE  DOMESTIC   RELATIONS.  [PART  III. 

marriage  of  his  parents,  lawful  by  the  laws  of  the  land  where 
celebrated,  it  is  clear  that  any  child  must  remain  illegitimate, 
whatever  be  the  domicile  of  his  origin. 

§  232.  Parental  Relation  by  Adoption.  —  By  adoption  a  quasi 
parental  relation  was  sometimes  constituted  at  the  civil  law. 
Adoption  is  the  taking  or  choosing  of  another's  child  as  one's 
own.1  The  adoption  of  children  is  still  regulated  in  Germany 
and  France,  but  is  not  generally  recognized  in  English  or 
American  law.  Adoption  was  not  possible  by  our  old  common 
law.  But  in  Massachusetts  it  is  recently  provided  that  under 
a  judicial  decree  rendered  upon  due  investigation,  any  person 
may  adopt  as  his  own  the  ehild  of  others ;  and  that  the  child 
so  adopted  shall  be  deemed,  for  the  purposes  of  inheritance  and 
all  other  legal  consequences  and  incidents  of  the  natural  rela- 
tion of  parents  and  children,  the  child  of  the  parents  by 
adoption,  the  same  as  if  he  had  been  born  to  them  in  lawful 
wedlock.2  In  Louisiana  the  laws  once  authorized  adoption ; 
but  this  was  changed  by  the  Code  of  1808.  Yet  adoption  by 
special  act  of  the  legislature  is  not  unknown  in  that  State.3 
There  are  various  other  States  in  which  adoption  is  now  per- 
mitted, and  the  rights  of  the  parent  by  adoption  are  treated 
substantially  as  those  of  a  natural  parent.4  But  our  local  legis- 
lation has  sometimes  discountenanced  the  adoption  of  a  stranger 
as  co-heir  with  one's  own  child.5     The  consent  of  the  natural 

Succession  of  Caballero,  24   La.  Ann.  Humphries  v.  Davis,  100  Ind.  274,  369, 

573.  422.     In  Wisconsin  the  adopted  child's 

1  Inst.  L  11,  1  ;  Bouvier,  Law  Diet,  real  estate  follows  the  general  rule  of 

'■  Adoption."  descent.     Hole  i>.  Robbins,  5.'3  Wis.  514. 

-  Mass.  Gen.  Sts.  c.  110;  Sewall  r.  An  insurance  policy  in  favor  of  "  chil- 

Roberts,  115  Mass. 262.  dren"  will  include  an  adopted  child. 

'■'■  Viilal   v.  Commajere,  13  La.  Ann.  Martin    v.  JEtna  Ins.  Co.  73   Me.  :>">. 

516  Such   child   may  inherit  tinder  a  trust 

■  Rives  v.  Sneed,  25  Ga.  612;  Stim-  to  one's  "  issne,"    though    not   where 

son,  Stat.   Law,   §§  6640-6651;  Lunay  "heir    of    body"    is    the    expression. 

.-.  Vantyne,  »0  Vt.  501.  Sewall  v.  Roberts,  n.~>  Mass.  262.    And 

'■  Teal  v.  Sevier,  26  Tex.  516.     See  see  Ingram  v.  Soutten,  L.  R.  7  II.  L. 

Johnson's   Appeal,  88    Penn.    St.   346;  408.    The  rights  of  an  adopted  heir, 

Wagner  v.    Varner,  50  [owa,  532.     An  under  the  Texas  statute,  are  co-equai 

adopted  child  usually  inherits  from  the  with  the  rights  of  the  other  heirs.     In 

adopting   parent,  and    r,r,    versa,  the  this   respect  the  old    Spanish    law    is 

natural   parenl  being  excluded  in  pref-  modified.     Eckford  v.    Knox,   f>7  Tex. 

erence.     Davia    <•     Krng,  '.>■>    Lad,    l;  200.    The  adopting  parent  should  sup- 

360 


CHAP.  I.]         LEGITIMATE    CHILDREN    IN   GENERAL. 


§  232 


parent  or  existing  custodian  is  usually  requisite  unless  the  rea- 
sons for  dispensing  with  it  are  strong  and  judicially  considered.1 
Adoption  relates  usually  to  minors  and  not  to  adult  children.2 

The  method  of  adoption  in  States  which  permit  it  is  pointed 
out  by  local  law.  In  some  States  a  written  instrument  must  be 
executed  and  recorded,  and  the  proceedings  are  in  the  nature  of 
a  solemn  contract.3  In  others  a  judicial  decree,  upon  due  notice 
to  kindred  or  their  assent,  is  requisite.4     Whatever  be  the  mode 


port  and  is  entitled  to  the  minor  child's 
custody  and  services.  91  Ala.  295 ;  98 
Ala.  342.  Unless  a  contract  of  adop- 
tion expressly  provides  otherwise,  the 
adopting  parent  retains  the  usual  right 
of  disposing  by  will,  as  in  the  case  of 
natural  offspring.  99  Mo.  478.  An 
adopted  child  who  is  also  grandson  of 
the  adopting  parent  cannot  inherit  in 
a  twofold  capacity ;  though  ordinarily 
the  adopted  child's  right  to  inherit 
from  his  natural  parent  is  recognized 
by  statute.  148  Mass.  619.  An  adopted 
child's  domicile  changes  during  minor- 
ity with  that  of  the  adopting  parent  on 
the  usual  principle.  §  230;  3  Pickle, 
644. 

1  37  N.  J.  Eq.  245. 

2  See  Moore,  Re,  14  R.  I.  38. 

3  Tyler  v.  Reynolds,  53  Iowa,  146  ;  64 
Iowa,  71  ;  Bancroft  v.  Heirs,  53  Vt.  9; 
98  Cal.  531. 

4  Ballard  v.  Ward,  89  Penn.  St.  358  ; 
137  Mass.  84,  346.  The  Louisiana 
statutes,  as  to  adoption,  do  not  mean  to 
abridge  the  right  of  a  natural  tutor  to 
his  minor  child.  Succession  of  For- 
stall,  25  La.  Ann.  430.  The  adoption 
by  instrument  may  require  the  surviv- 
ing parent  to  assent.  Long  v.  Hewitt, 
44  Iowa,  363.  But  the  release  of  pa- 
rental authority  is  not  revocable  at 
pleasure.  Jones  v.  Cleghorn,  54  Ga. 
9.  Equity  cannot  dispense  with  strict 
statute  compliance  as  to  adoption. 
Long  v.  Hewitt,  supra. 

Consent  of  an  orphan  asylum  from 
which  the  child  was  taken  was  held 
essential  in  80  Cal.  216.  An  order 
based  upon  the  child's  abandonment  by 


the  parent,  without  notice  to  the  latter, 
is  invalid.  86  Wis.  31;  87  Cal.  638; 
78  Mo.  352.  But  the  putative  father 
of  an  illegitimate  child  is  not  entitled 
to  notice;  and  the  assent  of  the  child's 
guardian  here  suffices.  154  Mass.  378. 
Where  adoption  by  written  instrument 
prevails,  an  informal  instrument  might 
operate  as  a  contract  for  specific  per- 
formance.    113  Mo.  340. 

A  statute  making  an  adopted  child 
legally  the  child  of  the  parents  by  adop- 
tion is  not  unconstitutional  unless  in- 
terfering with  vested  rights.  Sewall  v. 
Roherts.  1 1 5  Mass.  262.  Under  the  rule 
of  comity,  adoption  in  another  State 
may  be  here  recognized  under  suitable 
circumstances.  Ross  v.  Ross,  129  Mass. 
243;  148  111.  536.  But  not  where  the 
courts  of  that  State  had  not  jurisdiction. 
Foster  v.  Waterman,  124  Mass.  592. 
General  rules  of  descent  are  not  neces- 
sarily or  presumably  changed  by  stat- 
utes of  adoption ;  but  on  death  of  an 
adopted  child  his  estate  goes  to  his 
blood  relatious.  Reinders  v.  Koppel- 
mann,  68  Mo.  482.  As  to  petitions 
for  adoption,  see  137  Mass.  84,  346. 
That  the  child  who  permitted  himself 
to  be  adopted  as  an  heir  knew  the 
adopting  parent  to  be  of  feehle  or  un- 
sound mind,  is  not  fraud  sufficient  to 
avoid  the  adoption.  101  Ind.  340.  The 
rights  conferred  by  adoption  cannot  he 
divested  by  the  will  of  the  adopting 
parent.  Hosser's  Succession,  37  La. 
Ann.  839.  As  to  adoption  by  a  husband 
with  or  without  his  wife's  consent,  se® 
53  Vt.  619;  87  Ind.  590. 

301 


§  234  THE   DOMESTIC   RELATIONS.  [PART   III. 

prescribed  by  the  legislature,  this  procedure  should  conform  care- 
fully, as  in  derogation  of  the  common  law.  Under  the  Roman 
civil  law  consanguinity  was  not,  as  our  English  common  law 
regards  it,  an  essential  basis  to  the  filial  relation ;  for  infants 
were  exposed  to  death,  and  indifference  to  blood  offspring,  as 
well  as  to  the  ties  of  lawful  wedlock,  characterized  the  law  of 
family  in  the  decaying  age  of  the  Empire.  Adoption  was  a 
convenience,  however,  even  thus,  for  the  transmission  of  wealth 
and  titles ;  and  by  adoption,  moreover,  we  find  an  unfruitful 
couple  at  the  present  day,  and  in  our  own  country,  grafting  the 
tree,  in  obedience  to  the  best  of  parental. instincts.1 


CHAPTER   II. 

THE   DUTIES   OF   PARENTS. 


§  233.  Leading  Duties  of  Parents  Enumerated.  —  Three  leading 
duties  of  parents  as  to  their  legitimate  children  are  recognized 
at  the  common  law  :  first,  to  protect ;  second,  to  educate  ;  third, 
to  maintain  them.  These  duties  are  all  enjoined  by  positive 
law  ;  yet  the  law  of  the  natural  affections  is  stronger  in  uphold- 
ing such  fundamental  obligations  of  the  parental  state.2 

§  234.  Duty  of  Protection  ;  Defence,  Personal  and  Legal.  — 
First,  as  to  protection  :  that  cover  or  shield  from  evil  and  in- 
jury which  is  afforded  by  the  parent.  This  duty  the  stronger 
owes  to  the  weaker,  and  especially  does  the  father  owe  it  to  his 
child,  so  long  as  the  latter  remains  comparatively  helpless.  This 
obligation  may  be  shifted  in  time,  as  age  adds  to  the  strength  of 
the  one  and  the  infirmities  of  the  other. 

1  The  adoption  of  illegitimate  off-  another;    and   both   modes  prevail  in 

spring  was  one  method  of  Legitimating  parts  of  this  country.     Stimson,  §§  G632, 

uently  at  the  <'i\il  law,  thus  dis-  6683  ;  p.  353,  notes, 

pensing   with   the    parental   marriage.  -  l  Bl.Com.447;  2 Kent,  Com.  189; 

Blythe   i      Vyres,  96  Cal.  533.     Pnblic  Taylor's  Civil  Law,  383;   Tuff.   b.  4, 

acknowledgment    by    the    parent    was  c.  11,  §§  4,  5. 

362 


CHAP.  II.]  DUTIES   OF    PARENTS.  §  235 

It  is  to  the  credit  of  our  civilization  that  the  natural  duty  of 
protection  is  rather  permitted  than  enjoined  by  any  municipal 
laws ;  nature  in  this  respect  "  working  so  strongly,"  to  use  the 
forcible  words  of  Blackstone,  "as  to  need  rather  a  check  than  a 
spur."  1  The  strongest  illustration  of  protection  at  the  common 
law  which  is  furnished  by  this  learned  writer,  —  that  of  a  father 
who  revenged  his  son's  iujury  by  going  near  a  mile  and  beating 
the  offender  to  death  with  a  cudgel,  —  though  affording  a  ques- 
tionable legal  principle,  as  he  puts  it,  shows  at  least  what  the 
verdicts  of  our  juries  are  constantly  confirming,  that  the  sympa- 
thies of  human  tribunals  are  with  him  who  defends  his  own 
offspring,  even  when  his  zeal  outruns  his  discretion.2 

A  parent  may,  by  the  common  law  of  England,  maintain  and 
uphold  his  children  in  their  lawsuits,  without  being  guilty  of 
the  legal  crime  of  maintaining  quarrels.3  He  may  also  justify 
an  assault  and  battery  committed  in  defence  of  the  persons  of 
his  children.4  On  the  other  hand,  as  we  shall  hereafter  see, 
where  he  is  cruel  and  devoid  of  natural  affection,  his  children 
may  be  taken  from  his  personal  keeping  ;  nay,  he  may  be  sub- 
ject to  punishment  for  his  own  misconduct.5  The  doctrine  of 
parental  protection  seems  to  have  required  little  or  no  special 
judicial  discussion  in  modern  times. 

§  235.  Duty  of  Education.  —  Second.  The  second  duty  of 
parents  is  that  of  education  ;  a  duty  which  Blackstone  pro- 
nounces to  be  far  the  greatest  of  all  .these  in  importance.6 
This  importance  is  enhanced  by  the  consideration  that  the  use- 
fulness of  each  new  member  of  the  human  family  to  society 
depends  chiefly  upon  his  character,  as  developed  by  the  train- 
ing he  receives  in  early  life.  Not  the  increase  of  population, 
but  the  increase  of  a  well-ordered,  intelligent,  and  honorable 
population  is  to  determine  the  strength  of  a  State  ;  and,  as 
a  civil  writer  observes,  the  parent  who  suffers  his  child  to  grow 

1  Bl.  Com.  450.  suits   of    his   minor   children.     Hill   v. 

2  See  1    Hawk.  P.   C.  83,  cited  in  1     Childress,  10  Yerg.  514. 

Bl.  Com.  450;  and  n.  by  Coleridge,  cit-         4  1  Hawk.  P.  C.   131;    1   Bl.  Com, 

ing  Fost.  294,  and  2  Ld.  Raym.   1498,  450. 

in  opposition  to  Blackstone's  remark.  5  See  §  244. 

3  2  Inst.  564.     But  a  parent  is  not  6  1  Bl.  Com.  450. 
bound  to  employ  counsel  to  defend  the 

363 


§  235  THE   DOMESTIC    RELATIONS.  [PART    III. 

up  like  a  mere  beast,  to  lead  a  life  useless  to  others  and  shame- 
ful to  himself,  has  conferred  a  very  questionable  benefit  upon 
him  by  bringing  him  into  the  world.1  Solon  excused  the  chil- 
dren of  Athens  from  maintaining  their  parents,  if  they  had 
neglected  to  train  them  up  in  some  art  or  profession.2  So  in- 
timately is  government  concerned  in  the  results  of  early  training, 
that  it  interferes,  and  justly,  too,  both  to  aid  the  parent  in  giv- 
ing his  children  a  good  education,  and  in  compelling  that  educa- 
tion, where  the  parent  himself,  and  not  the  child,  is  delincpuent 
in  improving  the  opportunities  offered.3 

Questions  of  parental,  and  more  particularly  religious,  educa- 
tion arise  often  in  English  law  under  the  will  of  the  father.  It 
is  laid  down  as  the  rule,  that  where  one  has  left  no  direction  in 
his  will  as  to  the  religion  in  which  his  children  are  to  be  edu- 
cated, it  will  be  presumed  that  his  wishes  were  that  they  shall 
be  educated  in  his  own  religion.4  Further,  that  the  religious 
education  of  an  infant  of  fifteen  will  not  be  changed  unless  the 
infant  wishes  it.5  But  no  regard  is  paid  to  the  wishes  of  a  child 
ten  years  old.6  The  father  is  allowed  to  designate  the  plan  of 
education  to  be  followed  with  respect  to  his  children  after  his 
death.  And  while,  as  Lord  Cottenham  has  observed,  he  has  no 
power  to  prescribe  a  particular  religion  to  his  child,  yet  he  has 
indirectly  the  power  of  effecting  his  object  by  the  choice  of  a 
guardian.7 

The  English  courts  of  chancery  have  indeed  exercised  consid- 
erable jurisdiction  over  the  education  of  minor  wards  :  a  topic 
which  very  seldom  engages  the  attention  of  American  tribunals. 
While  the  penal  laws  against  Roman  Catholics  were  in  full  force 
in  England,  it  was  considered  the  duty  of  the  court  of  chancery, 

1  Tuff.   Law  of  Nations,  b.  6,  c.  2,  6  Witty  v.  Marshall,   1    You.   &  C. 

§12.  N.  C.  08. 

a  Plutarch's    Lives;    2  Kent,   Com.         «  Regina  v.  Clarke,  7  El.  &  B.  186. 

195.  And  sec   Ilawkswortli   v.  Hawksworth, 

3  Under  existing  statutes  a  parent  L.  R.  6  Ch.  530. 

|.i  i  ecuted    for  neglecting  to         "  Talbof   v.  Earl  of  Shrewsbury,  18 

educate    his    child.     School    Board   v.  L.  J.  125;  Macphers.  Inf.  126.    See  also 

Jai  I. -on,  :  u.  B.  I).  .".02.  Hill  v.  Hill,  8  Jur.  \.  s.  609.    And  see 

1  In  re  North,  1 1  Jm-.  7,  V.C.  Bruce;  Fraser,  Parent  &  Child,  82. 
Macphers.  Inf.  555;  Campbell  i».  Mac- 
kav,  2  .M\l   &  Ci  34. 

864 


CHAP.  II.]  DUTIES    OF    PARENTS.  §  235 

by  analogy  to  the  statute  law,  to  see  that  all  infants  under  its 
control  should  be  brought  up  in  the  Protestant  religion.1  A 
case  is  reported  in  which  Lord  Cowper  ordered  a  Roman  Cath- 
olic girl  to  be  sent  to  a  Protestant  school,  evidently  with  a  view 
to  her  conversion.2  With  the  progress  of  religious  toleration 
came  a  different  rule  of  practice  ;  and  it  is  now  a  cpuestion 
whether,  under  any  circumstances,  the  court  would  interfere 
with  the  testamentary  guardian,  and  the  infant's  religion  as  des- 
ignated by  the  father ;  indeed,  according  to  many  late  decisions, 
the  Roman  Catholic  faith  appears  in  this  respect  as  much  favored 
as  the  Protestant.3  But  schemes  of  education,  in  cases  of  dis- 
agreement among  guardians,  are  still  prescribed  in  chancery.4 
So  the  rights  of  the  guardian  as  judge  of  the  place  of  his  ward's 
education  have  been  sometimes  enforced  in  equity  against  the 
ward's  own  wishes.5  And  the  courts  are  disposed  to  uphold 
the  father  in  his  reasonable  views  against  the  mother's  religious 
convictions,  or  those  of  the  children  themselves.6  The  father's 
educational  scheme  has  been  permitted  to  put  restrictions  on 
the  intercourse  of  a  daughter  with  her  own  mother.7  Courts  of 
chancery,  in  short,  have  jurisdiction  to  superintend  the  educa- 
tion of  infant  children.     Yet  the  English  courts  seem  to  have 


1  Macphers.  Inf.  123;  Lady  Teyn-  Oxford  to  Cambridge  ;  and  upon  his  re- 
ham's  Case,  9  Mod.  40.  peated  disobedience  there  went  another 

2  Hill  v.  Filkin,  2  P.  Wms.  5.  And  tarn  to  carry  him  to  Cambridge,  quam 
see  Blake  v.  Leigh,  Ambl.  306 ;  Jac.  to  keep  him  there.  See  Macphers.  Inf. 
264,  ».;  In  re  Bishop,  Reg.  Lib.  1774,  121,  141. 

cited  in  Macphers.  Inf.  124.  6  In  several  late  English  cases,  where 

3  Talbot  v.  Earl  of  Shrewsbury,  18  the  young  children,  under  the  mother's 
L.  J.  125,  per  Lord  Ch.  Cottenham.  influence,  were  likely  to  become  either 
And  see  Regina  v.  Clarke,  7  El.  &  B.  Roman  Catholics  or  atheists,  chancery 
186  ;  Hawksworth  v.  Hawksworth,  L.  interposed  to  carry  out  the  father's 
R.  6Ch.  539;  Clarke,  Re,  21  Ch.  D.  817.  wishes  and  bring  them  under  Protes- 
But  cf.  Agar-Ellis  v.  Lascelles, L.  R.  10  tant  influence;  and  this,  notwithstand- 
Ch.  D.  49 ;  D'Alton  v.  U'Alton,  L.  R.  ing  a  voluntary  or  judicial  separation 
4  P.  D.  87.  of   the   parents   which    had    given  the 

4  Campbell  v.  Mackay,  2  Myl.  &  Cr.  mother  the  children's  custody.  Agar- 
34;  Macphers.  Inf.  555.  Ellis  v.  Lascelles,  L.  R.   10  Ch.  D.  49; 

5  Tremain's  Case,  Stra.  168;  Hall  v.  Besant,  In  re,  L.  R.  11  Ch.  D.  508.  In 
Hall,3Atk.72l.  In  Tremain's  case,  an  D'Alton  v.  D'Alton,  L.  R.  4  P.  D.  87, 
"  infant "  went  to  Oxford  contrary  to  both  parents  had  been  Roman  Catho- 
the  orders  of  his  guardian,  who  wished  lies,  and  the  father  afterwards  became 
him  to  study  at  Cambridge.  The  court  a  Protestant.  And  see  40  Ch.  D.  200. 
6ent  a  messenger  to  carry  him   from         7  24  Ch.  D.  317. 


o 


65 


§  236  THE   DOMESTIC    KELATIOSS.  [PART    III. 

acted  rather  for  the  purpose  of  securing  the  control  of  the  child's 
education  to  the  proper  person,  or  upholding  the  father's  wishes, 
than  to  make  independent  regulations  of  their  own  according  to 
the  child's  welfare.1  In  this  respect,  as  well  as  in  enforcing  the 
disabilities  of  the  law  against  Eoman  Catholics  and  dissenters, 
chancery  was  manifestly  influenced  by  considerations  of  national 
policy. 

Should  such  a  subject  come  before  the  courts  of  this  country, 
they  might  fairly  take  a  different  course,  more  in  accordance 
with  American  legislation.  Our  municipal  laws  in  general  pro- 
vide for  the  infant's  educational  wants  ;  and  this  whole  juris- 
diction is  one  of  great  embarrassment  and  responsibility.  "We 
do  not  find  a  leading  American  case  decided  on  strict  common 
law  or  chancery  grounds  with  direct  and  sole  reference  to  the 
education  of  young  children.2  But  there  are  several  late  deci- 
sions concerning  the  right  of  public  school  boards  to  issue  general 
regulations  concerning  the  admission,  suspension,  or  dismissal  of 
pupils,  or  the  subjects  of  study.  And  in  some  States  the  father 
of  a  child  may  apply  for  mandamus  against  the  board  to  compel 
them  to  admit  to  the  public  school  his  child,  who  has  been  un- 
lawfully excluded.3  Our  various  constitutional  provisions  for 
religious  freedom  produce,  moreover,  local  disputes  on  the  sub- 
ject of  religious  or  race  instruction  in  the  public  schools.4 

§  23G.  Duty  of  Maintenance  in  General.  — The  third  parental 
duty  is  that  of  maintenance.  It  is  a  plain  precept  of  universal 
law  that  young  and  tender  beings  should  be  nurtured  and 
brought  up  by  their  parents ;  and  this  precept  have  all  nations 

1  See  2  Story,  Eq.  Juris.  §  1342;  wilful  nor  malicions.  77  Mich.  605.  A 
"Wellesley  v.  Wellesley,  2  Bligh,  x.  s.  minor  child's  right  to  local  public  edu- 
124.  cation  is  not  entirely  dependent  upon  a 

2  See  the  topic  of  Custody,  infra,  local  domicile  in  the  strict  sense.  74 
§  245;  Jones  v   Stockett,  2  Bland,  409.  Wis.  48;  59  Conn.  489. 

People  v.  Board  of  Education,  18  4  As  to  studying  languages,  see  129 

Mich.  400;  31  Neb.  552,  maintaining  a  Ind.    14.     As   to    religious    instruction 

father's  right  to  make  a  reasonable  selec-  and  the  use  of  the  Bible,  see  Hysong  v. 

tion   for   his  own  child  from  the  stud-  School  District  (1894),  Penn.;  State  v. 

lea  prescribed.    See  further,  Burdick  v.  District  Board,  70  Wis.  177.    Separate 

Babcock,  31   [owa,  '><'>2;    Hodgkins   '•.  schools  for  white  and  colored  children 

Rockport,  105  Mass.  475.     A  pupil  can-  may  he    rightfully    established.      103 

Dot  be  expelled  from  a  public  Bchool  Mo.  546. 
because  of    mere    negligence,   neither 

306 


CHAP.  II.]  DUTIES    OF   PARENTS.  §  £37 

enforced.  So  well  secured  is  the  obligation  of  maintenance 
that  it  seldom  requires  to  be  euforced  by  human  laws.1  Are 
we  brought  iuto  this  world  to  perish  at  the  threshold  by  suffer- 
ing and  starvation?  No;  but  to  live  and  to  grow.  Someone, 
then,  must  enable  us  to  do  so ;  and  upon  whom  more  justly 
rests  that  responsibility  than  upon  those  who  brought  us  into 
being  ?  Hence,  as  Puffendorf  observes,  the  duty  of  maintenance 
is  laid  on  the  parents,  not  only  by  Nature  herself,  but  by  their 
own  proper  act  in  bringing  the  children  into  the  world.  By 
begetting  them,  they  have  entered  into  a  voluntary  obligation 
to  endeavor,  as  far  as  in  them  lies,  that  the  life  which  they  have 
bestowed  shall  be  supported  and  preserved.2 

Maintenance  is  that  support  which  one  person  gives  to  an- 
other for  his  living.  This  word,  used  by  common-law  writers, 
corresponds  with  the  civil-law  term  "  aliment."3  The  obligation 
on  the  parent's  part  to  maintain  the  child  continues  until  the 
latter  is  in  a  condition  to  provide  for  his  own  maintenance ; 
and  it  extends  no  further,  at  common  law,  than  to  a  necessary 
support.4  The  Roman  system  carried  this  obligation  so  far  that 
it  would  not  suffer  a  parent  at  his  death  totally  to  disinherit  his 
child  without  expressly  giving  his  reasons  for  so  doing.6  And 
the  laws  of  Athens  were  to  the  same  purport.6  Blackstone 
does  not  appear  to  approve  of  carrying  natural  obligation  so  far. 
And  he  cites  Grotius  in  support  of  a  distinction  which  limits 
the  child's  natural  right  to  necessary  maintenance;  what  is 
more  than  that,  depending  solely  upon  the  favor  of  parents,  or 
the  positive  constitutions  of  the  municipal  law.7  Coke  observes 
that  it  is  "  nature's  provision  to  assist,  maintain,  and  console  the 
child." 8 

§  237.  Maintenance  at  Common  Law  ;  Statute  Provisions.  — 
The  statute  43  Eliz.  c.  2,  slightly  amended  by  5  Geo.  I.  c.  8, 

1  2  Kent,  Com.  189.  statutes  of  some  of  the  United  States 

2  Puff.  Law  of  Nations,  b.  4,  c.  11  ;  favor  this  doctrine  to  nearly  the  same 
\  Bl.  Com.  447.  extent.     A  child  is  not  disinherited,  at 

3  Cf.  Maephers.  Inf.  210,  and  Fraser,  least  by  mere  omission  from  the  will. 
Parent  &  Child,  85.  6  2  Potter,  Greek  Antiq  351. 

4  2  Kent,  Com.  190;  1  Bl.  Com.  7  Grot.  De  J.  B.  et  P.,  T.  2,  c.  7,n.3; 
448.  1  Bl.  Com.  448. 

5  Dig.  28,  230;  Nov.  115,  c.  3.     The         8  See  2  Kent,  Com.  190. 

367 


§  237  THE    DOMESTIC    RELATIONS.  [PART   III. 

points  out  the  English  policy  in  this  respect.  It  is  provided  by 
this  statute  that  the  father  and  mother,  grandfather  and  grand- 
mother, of  poor,  old,  blind,  lame,  and  impotent  persons  shall 
maintain  them  at  their  own  charges,  if  of  sufficient  ability ;  and 
if  a  parent  runs  away  and  leaves  his  children,  the  municipal 
authorities,  by  summary  judicial  process,  may  seize  upon  his 
rents,  goods,  and  chattels,  and  dispose  of  them  toward  their 
relief.1  No  person  is  bound  to  provide  a  maintenance  for  his 
issue,  except  where  the  children  are  impotent  and  unable  to 
act,  through  infancy,  disease,  or  accident,  and  then  is  only 
obliged  to  furnish  them  with  necessaries,  the  penalty  on  refusal 
being  no  more  than  twenty  shillings  a  month.  "  For  the  policy 
of  our  laws,  which  are  ever  watchful  to  promote  industry,"  says 
Blackstone,  "  did  not  mean  to  compel  a  father  to  maintain  his 
idle  and  lazy  children  in  ease  and  indolence ;  but  thought  it 
unjust  to  oblige  the  parent  against  his  will  to  provide  them 
with  superfluities,  and  other  indulgences  of  fortune ;  imagining 
they  might  trust  to  the  impulse  of  nature,  if  the  children  were 
deserving  of  such  favors."2  Lord  Eldon,  viewing  the  same  sub- 
ject afterwards  in  the  light  of  equity  principles,  was  differently 
impressed  by  these  penal  provisions,  and  founded  the  juris- 
diction of  chancery  upon  the  very  meagreness  of  the  common- 
law  remedies  against  keeping  the  child  from  starvation.3 

The  statute  43  Eliz.  may  be  considered  as  having  been  trans- 
ported to  the  United  States  as  part  of  our  common  law.  Its 
provisions  have  also  been  re-enacted  in  many  of  our  States,  as 
in  New  Hampshire,  Connecticut,  and  South  Carolina.  In  New 
York,  Massachusetts,  and  some  other  States,  the  provision  as 

1  1  Bl.  Com.  448;  Stubb  v.   Dixon,  shall  be  in  the  custody  of  the  father; 

166  ;   Macphers.  Inf.  210.    These  although  looking  at  the  quantum  of  al- 

Btatutes  did  not  extend  to  illegitimates  lowance  which  the  law  can  compel  the 

ipchildren.     Tubb   v.    Harrison,  4  father  to  provide  for  them,  they  may 

1     R.   118;  Cooper   v.  Martin,  4   East,  be  regarded   as  in  astate  little  bettor 

-''''■     Butthis  is  changed  by  statute  4  &  5  than  that  of  starvation?     The  courts 

W  ill.  LV.  c.  76.  of   law  can  enforce  the  rights   of  the 

-  I    BL  Com.  449;  Winston  v.  New-  father,  but  they  arc  not  equal  to  the 

COmen,  6  Ad.  &  El.  801.  office  of    enforcing    the    duties    of    the 

:)  "  Is    it,"    says    he,    "an    eligible  father."     Wellesley    v.    Duke  of    I.oau- 

thing  thai  children  of  nil  ranks  should  fort,  2  Russ.  23  (1827). 

be    placed     in    t  hl8     situation,   that    they 

868 


CHAP.  II.]  DUTIES    OF    PARENTS.  §  237 

to  grandparents  is  omitted.1  This  feeble  and  scanty  provision 
of  statute  law  was  intended,  as  Kent  observes,  for  the  indemnity 
of  the  public  against  the  maintenance  of  paupers.2  Some  local 
statutes  at  this  day  authorize  courts  and  magistrates  to  award 
to  the  overseers  of  the  poor  the  custody  of  children  who  are 
found  to  be  neglected  by  their  parents  and  growing  up  without 
education  or  salutary  control.3 

In  absence  of  special  statutes  to  the  contrary,  the  father-in- 
law  is  not  obliged  in  this  country  to  maintain  his  stepchildren, 
and  consequently  is  not  entitled  to  their  earnings.4  Under  the 
pauper  acts  it  is  held  that  the  father's  obligation  to  support  his 
vagabond  son,  who  cannot  support  himself,  does  not  accrue 
until  after  legal  proceedings  have  been  instituted  ;  and  the  fur- 
nishing of  previous  supplies  constitutes  no  legal  consideration 
to  support  a  new  promise.5  Nor  is  an  insane  mother,  herself  a 
pauper,  under  obligation  to  support  a  minor  child,  or  entitled 
to  his  earnings ; 6  indeed,  an  adult  son,  under  some  statutes,  is 
compelled  to  support  his  mother.7 

In  general,  the  legal  obligation  of  the  father  to  maintain  his 
child  under  the  common  law  ceases  as  soon  as  the  child  is  of 
age,  however  wealthy  the  father  may  be,  unless  the  child  be- 
comes chargeable  to  the  public  as  a  pauper.8  And  as  the  lan- 
guage of  statute  43  Eliz.  rendered  it  inapplicable  to  stepchildren, 
so  does  it  apply  to  blood  relations  only ;  and  the  husband  is 

1  2  Kent,  Com.  191, and  note;  Dover  6  Jenness  v.  Emerson,  15  N.  H.  486. 
v.  MeMurphy,  4  N.  H.  162  ;  Comm'rs  And  see  Sanfonl  v.  Lebanon,  31  Me. 
of  Poor  v.  Gansett,  2  Bail.  320.  And  124;  Farmington  v.  Jones,  36  N.  H. 
see  Haynes's  Adm'r  v.  Waggoner,  25  271. 

Ind.  174.  '  Smith  v.  Lapeer  County,  34  Mich, 

2  2  Kent,  Com.  191.  58 ;  Dierkes  v.  Phila.,  93  Penn.  St.  270. 

3  Farnham  v.  Pierce,  141  Mass.  203.     See  §  265. 

For  criminal  prosecution  under  a  local  8  2  Kent,  Com.  192  ;  Parish  of  St. 

statute  for  failure  to  support,  see  State  Andrew  v.  De  Breta,  1  Ld.  Raym.  699. 

v.  Sutcliffe  (1894),  N.  J.  The  father,  having  a  fair  capital,  may 

*  Commonwealth     v.     Hamilton,    6  be  liable  under  statute  for  the  support 

Mass.  253,  275 ;  Freto  v.  Brown,  4  lb.  of  his    adult    pauper    daughter  as   of 

675 ;  Worcester  v.  Marchant,  14  Pick.  "  sufficient   ability,"    even    though    his 

510;  Besondy,  Re,  32   Minn.  385 ;  113  income  be  less  than   his  expenses  and 

111.   461  ;    Bond   v.   Lockwood,   33   111.  his  health  infirm.     Templeton  r.  Strat- 

212  ;  §  273,  post.  ton,  128  Mass.  137. 

5  Mills    v.    Wyman,    3    Pick.    207; 
Loomis  v.  Newhall,  15  lb.  159 

2i  369 


§237 


THE   DOMESTIC   RELATIONS. 


[PART  III 


not  liable  for  the  expense  of  maintaining  his  wife's  mother,1  nor 
the  father  for  his  daughter's  husband ; 2  nor  a  man  who  marries 
for  his  pauper  stepchildren.3  But  a  quasi  parental  relation 
may  sometimes  be  established;  and  one  may  stand  in  loco 
parentis  to  another,  and  thus  become  responsible  for  the  main- 
tenance and  education  of  the  latter,  on  the  principle  that  the 
child  is  held  out  to  the  world  as  part  of  his  family.4 

In  a  state  of  voluntary  separation,  the  husband  prima  facie, 
and  not  the  wife,  is  liable  for  the  support  of  children  living 
with  her ;  and  if  the  wife  be  justified  in  leaving  her  husband's 
house  and  taking  the  child  with  her,  she  may  pledge  his  credit 
for  the  child's  necessaries  as  well  as  her  own,  so  long  as  he 
neglects  to  make  reasonable  effort  to  regain  the  child's  custody.5 
But  circumstances,  even  where  the  husband  deserts  his  wife,  may 
repel  the  idea  of  an  agency  thus  conferred  upon  her.6  The 
wife  carries  no  such  agency  with  her  when  divorced,  though 
the  divorce  be  for  the  husband's  fault,  and  from  bed  and  board 
only.7  If  the  wife  leaves  her  husband  without  cause,  taking 
the  minor  child  with  her,  she  has  apparently  no  right  as  agent 
ta  } »ledge  her  husband's  credit  for  the  child's  necessaries,  what- 
ever might  be  the  husband's  legal  duty  of  providing  for  the 
child's  support.8     For  the  mother  lias  her  own  moral  and  legal 


1  Rex  v.  Munden,  1  Stra.  190. 

2  Friend  v.  Thompson,  Wright,  636. 

3  Brookfield  v.  Warren,  128  Mass. 
127. 

4  See  post,  §  273.  as  to  stepchildren, 
&c. ;    supra,  §  232 ;    Ela  v.  Brand,  63 

x.  ir.  i4. 

6  limnney  v.  Keyes,  7  N.  H.  571 ; 
Kimball  v.  Keyes,  11  Wend.  32; 
Walker  v.  Laighton,  11  Fost.  Ill  ;  Gill 
v.    Head,   5   K.    I.  343.     And  see  Rey- 

v.  Sweetser,  15  Gray,  78;  Grnn- 
luit  /-.  Rosenstein,  7  Daly,  164. 

As  where  he  deserted  before  the 
child  was  born.  Lapworth  v.  Loach,  79 
Mich.  16;  121  Ind.  215. 

7  Hancock  '.'.  Merrick,  10  Cttsh.  41  ; 
I  itl.-r  r.  Fitler,  33  Perm.  St.  50;  Bur- 
ritl  v.  Bnrritt,  2U  Barb.  124 

in  Bazeleyr.  Forder,L.  R.8Q.  B. 
559,  il  was  conceded  that  a  wife  hail  no 
power  to  charge  her  husband  for  the 

870 


support  of  a  child,  unless  she  was  living 
apart  from  him  justifiably,  and  her 
power  to  do  it  in  that  case  was  put 
on  the  ground  that  the  reasonable  ex- 
penses of  the  child  Mere  part  of  her 
reasonable  expenses.  But  assuming  it 
to  he  true,  as  laid  down  in  several  more 
or  less  considered  dicta,  that  the  law  of 
Massachusetts  imposes  a  duty  upon  a 
father  to  support  his  children,  and  that, 
when  he  wrongfully  turns  wife  and 
children  out  of  doors,  his  liability  for 
tlic  latter  arises  out  of  that  duty  (15 
Cray,  78;  136  Mass.  187),  still  all  the 
cases  show  very  plainly  that,  when  the 
wile  leaves  without  cause,  taking  her 
child  with  her,  the  fact  that  her  hus- 
band docs  not  attempt  to  compel  her  to 
give  up  the  custody  of  the  child  does 
not  of  itself  authorize  her  to  bind  him 
for  its  support."  Holmes,  .1.,  in  Bald- 
win v.  Foster,  138  Mass.  449. 


CHAP.  II.]  DUTIES    OF    PARENTS.  §  238 

obligation  to  support,  nourish,  and  educate  her  own  children  to  the 
extent  of  her  ability  and  means.  And  while  in  case  of  either 
separation  or  divorce,  without  orders  of  custody,  the  obligation 
in  general  continues  as  before,  it  may  be  materially  affected  by 
the  special  circumstances  of  each  case ;  while  a  judicial  award 
of  children  to  the  mother  should  be  presumed  to  carry  with  it  a 
transfer  of  parental  duties,  as  well  as  of  parental  rights.1  But  a 
father,  as  against  the  public  and  his  children,  cannot,  it  is  often 
held,  escape  the  duty  of  providing  for  the  children's  support ; 
not  even  if  they  remain  with  their  mother  after  divorce.2  And 
although  a  wife  by  her  fault  may  forfeit  her  own  claim  to  sup- 
port, she  cannot  forfeit  that  of  the  children.3 

§  238.  Maintenance,  &c,  in  Chancery;  Allowance  from  Child's 
Fortune.  —  We  pass  from  maintenance  under  statute  to  chan- 
cery maintenance,  a  topic  considered  in  connection  with  educa- 
tion. Maintenance  as  ordered  by  courts  of  equity,  or  allowed 
in  settlement  of  a  trust  account,  has  grown  into  a  topic  of  con- 
siderable magnitude,  especially  under  the  English  system.  The 
rule  is,  that  where  an  infant  has  property  of  his  own,  and  his 
father  is  dead,  or  is  not  able  to  support  him,  he  may  be  main- 
tained and  educated  as  may  be  fit,  out  of  the  income  of  property 
absolutely  his  own,  by  the  person  in  whose  hands  the  property 
is  held;  and  a  court  of  equity  will  allow  all  payments  made  for 
this  purpose,  which  appear  upon   investigation  to  have    been 

1  Brow  v.  Brightman,  136  Mass.  633;  Conn  v.  Conn,  57  Ind.  323; 
187.  Stanton  v.  Willson,  3  Day,  37,  ap-  Thomas  v.  Thomas,  41  Wis.  229; 
pears  to  carry  the  mother's  right  much  Welch's  Appeal,  43  Coun.  342  ;  Buck 
further ;  but  its  authority  is  question-  v.  Buck,  60  111.  105.  Local  statutes 
able.  We  must  admit,  however,  that  in  affect  this  question  considerably ;  aud 
a  late  English  case,  presenting  a  strong  the  award  of  alimony  is  a  matter  of 
6tate  of  facts,  a  woman  who  lived  apart  judicial  discretion  in  divorce  suits, 
from  her  husband  for  sufficient  cause,  When  custody  of  a  child  is  given  to 
having  with  her,  against  her  husband's  the  mother  on  her  divorce  from  the 
will,  their  child,  of  whom  a  court  had  child's  father,  the  latter,  having  no 
given  her  the  custody,  was  allowed  right  to  the  child's  services,  is  free  from 
(Coekburn,  C.  J.  dis.)  to  pledge  the  liability  to  the  mother  for  the  child's 
husband's  credit  for  the  child's  reason-  maintenance.  Husband  v.  Husband, 
able  expenses  ;  she  having  no  adequate  67  Ind.  583.  Especially  if  the  mother 
means  of  support.  Bazeley  v.  Forder,  remarries,  and  her  second  husband  as- 
L.  R.  3  Q.  B.  559.  See  infra,  §  239 ;  sumes  the  place  of  father.  Johnson  v. 
and  as  to  the  child's  right  to  bind  as  Ousted,  74  Mich.  437  ;  121  Ind.  215. 
agent,  §  241.  3  But  alimony  decrees  may  regulate 

2  Courtright  v.  Courtright,  40  Mich,  such  matters.     95  Cal.  374. 

371 


§  238  THE   DOMESTIC   RELATIONS.  [PAHT   in. 

reasonable  and  proper.1  As  a  general  rule,  the  father  must,  if 
he  can,  maintain  as  well  as  educate  his  infant  children,  what- 
ever their  circumstances  may  be ;  and  no  allowance  will  be 
made  him  out  of  their  property,  while  his  own  means  are  ade- 
quate for  such  purposes.  This  principle  is  clearly  established, 
both  in  England  and  America.2  And  the  strict  rule  of  the 
common  law  regarded  the  parent  as  without  legal  right  to  re- 
imbursement for  his  outlay  in  this  direction. 

But  if  the  father  is  unable  to  maintain  his  children,  the  court 
of  chancery  will  order  maintenance  for  them  out  of  their  own 
property.3  And  where  the  question  turns  upon  the  father's 
ability,  maintenance  is  given,  not  only  in  case  of  his  bankruptcy 
or  insolvency,  but  whenever  it  appears  that  he  is  so  straitened 
in  his  circumstances  that  he  cannot  give  the  child  a  maintenance 
and  education  suitable  to  the  child's  fortune  and  expectations.4 
The  amount  of  such  fortune,  as  well  as  the  situation,  ability,  and 
circumstances  of  the  father,  will  be  taken  into  account  by  the 
court  in  all  such  cases.  And  where  a  father  has  himself  made 
no  charge  for  maintaining  his  infant  children,  the  court  will  not 
make  it  for  him  in  order  to  benefit  his  creditors.5 

Courts  now  look  with  great  liberality  to  the  state  of  facts  in 
each  particular  case  of  this  kind  before  them.  Thus,  there  are 
precedents  in  the  English  courts  where  the  father  had  a  large 
income,  and  yet  was  allowed  for  the  maintenance  of  his  infant 
children,  they  having  an  income  still  larger;6  though  the  in- 

1  Macphers.  Inf.  213 ;  2  Story,  Eq.  in   cultivating  a  plantation,  owned  in 

Juris,  §  L354.  common   by  father   and   child,   see   34 

-  Macphers.  Inf.   145,  219,  Welles-  La.  Ann.  326. 
ley  v.   Beaufort,  2  Russ.  28;  Butler  v.  3  2  Kent,  Com.  191  ;  Macphers.  Inf. 

Butler,  3   Atk.  60;  2  Kent,  Com.  191;  220. 

Darley  v.  Darley,  3  Atk.  399;  Cruger         4  Buckworth  v.  Buckworth,  1   Cox, 

v.  Heyward,  \i  Desans.  94;  Matter  <>f  80;    Macphers.   Inf.  220;   Newport  v. 

Kane,  2    Barb.   Ch.   375;    Addison    v.  Cook,  2  Ashm.  332 ;  Matter  of  Kane,  2 

Bowie,  -t  Bland,  606;  Harland's  Case,  Barb.  Ch.  375;  Lagger  v.  Mutual  Loan 

5   Rawle,  323;  Myers  v,  Myers,  2  Mc-  Co.,  140  DX  283;  136  111.354. 
Cord,  Ch.  255  ,  Tompkins  v.  Tompkins,         5  Beardsley  v.  Hotchkiss,  96  N.  Y. 

i:  Green,  303;  Tanner  v.  Skinner,  201. 
II    Bush,    120,  Buckley  v.  Howard,  35  B  2  Kent,  Com.  191  ;  Jervois  v.  Silk, 

565;  Ela  v.  Brand,  63  X.  II.  14;  Coop.    Eq.    52;    2    Story,    Eq.   Juris. 

89  N.  J.   Eq    227;  Kinsey  v.  State,  98  §  1354  er  «e?. ;  Greenwell  v  Greenwell, 

[nd.  351  ;    96  \.    V.   201;    Bedford  v.  5  Ves.  194  ;  Hoste  r.  Pratt,  3  Ves.  730; 

Bedford,   L36   111.  354.     As  to  liability  Ex  parte  l'enleaze,  1  Hro.  C.  C.  387,  n. 


tJHAP.  II.]  DUTIES    OF    PARENTS.  §  238 

creasing  liberality  of  the  courts  in  that  country  is  now  chiefly 
exhibited  in  their  construction  of  written  directions  for  main- 
tenance now  so  common  in  deeds  of  settlement  and  other  instru- 
ments, by  which  property  is  secured  to  the  infant.1  In  this 
country  there  are  many  instances  where  the  father  has  been 
allowed  for  his  child's  maintenance,  though  not  destitute.  As 
in  a  case  where  the  father  was  guardian  of  his  children,  labored 
for  their  support,  and  had  been  put  to  increased  expense  by  the 
death  of  their  mother.2  And  again,  where  his  resources  were 
very  moderate,  and  the  two  children,  young  ladies,  had  a  com- 
fortable income  between  them.3  So  where  the  father  was  poor 
and  disabled,  and  his  daughter  lived  with  him.4  Chancery  in 
all  such  cases  endeavors  to  pursue  the  course  which  is  best  cal- 
culated to  promote  the  permanent  interest,  welfare,  and  happi- 
ness of  the  children  who  come  under  its  care.  "  And  these," 
says  Chancellor  Walworth, "  are  not  always  promoted  by  a  rigid 
economy  in  the  application  of  their  income,  regardless  of  the 
habits  and  associations  of  their  period  of  minority."  5  In  other 
words,  to  liberally  educate  and  make  due  use  of  such  social 
advantages  as  the  child's  own  means  permit,  is  incumbent  upon 
every  judicious  parent,  since  each  child  should  be  trained  with 
reference  to  his  own  opportunities  ;  and  hence  a  child  with  for- 
tune should  not  be  straitened  in  his  bringing  up  because  the 
parent  is  without  one.  One  may  maintain  suitable  to  his  own 
condition  in  life,  while  it  is  fair  that  his  children  should  be 
supported  according  to  theirs.6 

The  father  may  be  allowed  for  the  expenses  of  past  main- 
tenance and  education,  if  special  circumstances  exist;  not  other- 
wise, according  to  the  English  rule  of  the  present  day.7     But 

1  See  Macphers.  Inf.  221-223 ;  Hey-  Dodrl,  2  Tenn.  Ch.  500 ;  Holtzman  !' 
sh-  \  v.  Heysliam,  1  Cox,  179.  And  Castleman,  2  MacArthur,  555;  Baines 
see  Allen  v.  Coster,  1  Beasl.  201.  v.  Barnes,  64  Ala.  375.     Cf.  23  N.  J. 

2  Harring   v.   Coles,  2   Bradf.    Sur.  Eq.  136,  296. 

849.  5  Matter  of  Burke,   4    Saudf.    Ch, 

3  Matter   of   Burke,   4    Sivudf.    Ch.     619. 

617.  6  See   ITaase  v.  Roerschild,  6  Ind 

4  Watts  t>.  Steele,  19  Ala.  656.  And  67;  Sparhawk  v  Sparhawk's  Ex'r,  9 
see  Godard  v    Wagner,  2  Strobh.  Eq.     Vt  41. 

1;    Newport    v.   Cook,   2   Ashm.   332;  7  2  Story,  Eq.  Juris.  Redf.  ed.  §  1354 

Otte  v.  Becton,  55  Mo.  99 ,  Trimble  v.    a ;  Carmichael  v.  Hughes,  6   E.  L.  & 

373 


§  238  THE    DOMESTIC    RELATIONS.  [PART    III. 

the  father's  non-residence,  and  consequent  inability  to  make  a 
seasonable  application  for  maintenance,  is  held  a  special  circum- 
stance to  justify  such  allowance.1  While  the  old  rule  was  to 
make  no  allowance  for  past  maintenance,  that  rule,  with  the 
increase  of  wealth  and  liberal  living,  has  been  greatly  relaxed 
in  modern  times.  In  this  country,  too,  as  to  retrospective  allow- 
ance, chancery  does  not  appear  to  be  very  strict  as  concerns 
the  parent,  though  special  circumstances  should  always  be 
chosen  for  making  it.2  Every  such  case  must  depend  on  its 
own  facts.  We  apprehend  that,  both  in  England  and  America, 
maintenance  would  be  allowed  the  parent  from  the  estate  of  a 
full-grown  child  only  on  proof  of  some  contract.3 

A  father,  even  if  lie  be  not  in  needy  circumstances,  may 
maintain  his  children  out  of  any  fund  which  is  duly  vested  in 
him  for  that  express  purpose.4  One  may  also  contract  that 
certain  property  shall  be  applied  to  the  maintenance  and  edu- 
cation of  his  children,  in  which  case  also  the  contract  may  be 
enforced  in  his  favor,  without  regard  to  the  question  of  ability ; 
and  on  this  ground  provisions  for  maintenance  in  an  antenuptial 
settlement  have  been  construed  in  favor  of  the  husband  and 
father.5  But  it  is  clear,  from  the  cases,  that  where  the  fund  is 
given  as  a  mere  bounty,  notwithstanding  a  provision  for  main- 
tenance, the  father,  if  of  ability,  must  support  the  child  ; 6  and 
this  principle  is  extended  to  the  father's  postnuptial  and  vol- 
untary settlement  upon  his  children  as  distinguished  from 
antenuptial  contracts.7     This  will  not  prevent  a  court  from  con- 

Eq.  73,  per  Lord  Cranworth ;  Ex  parte  4  Maophers.  Inf.  220;  Hawkins,  v. 
Bond,  -i  Mvl.  &  K.  439;  Brown  v.  Watts,  7  Sim.  199;  Andrews  v.  Par- 
Smith,  L.  R.  10  Ch.  D.  377.  tin-tun,    2   Cox,   223  :  Kendall  v.  Ken- 

1  Carmichael  v.  Hughes,  6  E.  L.  &  dall,  GO  N.  II.  527. 

Eq.   71.     And    see    Stopford    v.   Lord  s  Mundy  ?;.  Earl  Howe,  4  P.m.  C.  0. 

Canterbury,  11  Sim.  82;  Bruin  v.  Nott,  224;  Stocken  v.  Stocken, 4  Sim.  152; 

l  Phill.  572;  l  Tamlyn,  22.  Macphers.   Inf.  220;  Ransome  v.  Bur- 

-  Matter  of  Kan.',  2  Barb.  Ch.  375;  gess,  L.  R.  3  Eq.  773. 
blatter  of   Burke,  4   Sandf.   Ch.  619;  ''■  Hoste  v.  Pratt,  3  Vcs.  729 ;  Ham- 
Myers    <\    Myers,    2    McCortl   Ch.    214;  ley    v.    Gilhert,    Jac.    354;     Myers    v. 
Trimble    v.    Dodd,    2   Tenn.    Ch.    500;  Myers,  2    McCord,  Ch.  255;    Jones    p. 
Becton,  55  Mo.  99.  Stockett,2  Bland,  409. 
In  re  Cottrell's  Estate,  L.  R,  7  Tn  rt  Keunison's  Trusts,  L.  R.  12 
12  Eq.  566  ;  infra,  c.  5  ;    Otte  v.   Bee-  Eq.  422. 
ton,  55  Mo  99 

374 


CHAP.  II.]  DUTIES   OP   PARENTS.  §  239 

struiug  such  provisions  in  a  father's  favor,  where  the  facts 
show  that  he  ought,  on  geueral  principles,  to  receive  assistance.1 
It  will  presently  appear  that  the  parent's  right  to  his  child's 
services  becomes,  as  the  child  grows  older,  a  partial  offset  to  the 
cost  of  support ;  and  there  can  be  no  justice  in  letting  the  father 
receive  the  child's  useful  services  at  home,  or  his  earnings,  and 
charge  an  allowance  out  of  the  child's  property  at  the  same  time, 
regardless  of  that  pecuniary  advantage.2 

§  239.  Chancery  Maintenance  as  to  Mother  ;  Separated  Par- 
ents, &c.  —  The  mother,  after  the  death  of  the  father,  remains 
the  head  of  the  family.  She  has  the  like  control  over  the 
minor  children  as  he  had  when  living ;  and  she  is  then  bound 
to  support  them,  if  of  sufficient  ability.3  This  we  hold  to  be 
the  rule  most  conformable  to  natural  justice ;  though  there  are 
cases  and  statutes  which  would  seem  to  exempt  her  from  such 
obligations.4  In  a  state  of  separation  or  divorce,  too,  she  has 
her  own  obligations  toward  the  minor  child  in  her  separate 
custody.  The  statute  of  Elizabeth,  to  which  we  have  already 
referred,  expressly  includes  the  mother.  And  since  the  tend- 
ency of  the  clay  is  to  give  the  mother  a  more  equal  share  in 
the  parental  rights,  it  follows  that  she  should  assume  more  of 
the  parental  burdens.  It  is  nevertheless  clear  that  the  courts 
show  special  favor  to  the  mother,  as  they  should ;  and  if  the 
child  has  property  and  means  of  his  own  they  will  rather  in  any 
case  charge  the  expenses  of  his  education  and  maintenance  upon 
such  property  than  force  her  to  contribute.5     A  court  of  chan- 

1  See  Andrews  v.  Partington,  2  Cox,  of  repayment.     Pearce  v.  Olney,  5  R.  I. 

223,  commented  upon  in  Hoste  v.  Pratt,  269.     See  In  re  Stables,  13  E.  L.  &  Eq. 

3  Ves.  729.  61. 

Where  the  trustee  for  an  infant,  in  2  Livernois,  Re,  78  Mich.  330. 

the  exercise  of  rightful  discretion,  has  3  Dedham  v.  Natick,  16  Mass.  140. 

paid    over   to    the   father,    at    his    re-  4  Whipple    v.    Dow,    2    Mass.   415 ; 

quest,  certain  sums  of  money  out  of  the  Dawes  v.  Howard,  4  Mass.  97  ;  2  Kent, 

income  of  the  trust  property,  the  father  Coin.  191,  and  cases  cited  ;  supra,  §237. 
being  a  bankrupt,  it  is    held  that   no  5  lb.;  Haley  v.   Bannister,  4  Madd, 

promise   can    be   implied    under    such  275;  Hughes  v.   Hughes,  1  Bro.  C.  C 

circumstances,  on  the  part  of  the  father,  338.     And   see   Lanoy    v.   Duchess    of 

to  repay  to  the  trustee   the   sums  of  Athol,  2  Atk.  447 ;  Ex  parte  Petre,  7 

money  thus  applied  when  he  afterwards  Ves.  403  ;  Macphers.  Inf.  224;  Beasley 

becomes  able  to  do  so;  there  should  be  v.  Magrath,  2  Sch.  &  Lef.  35  ;  Pyatt  v. 

something  to  show  an  express  promise  Pyatt,  46  N.  J.  Eq.  285  ;  Anne  Walker's 

375 


§  239  THE   DOMESTIC   RELATIONS.  [PART   III. 

eery  will  not  readily  make  the  support  and  education  of  infant 
children  a  charge  upon  the  property  of  their  widowed  mother, 
nor  upon  that  of  a  stepfather  who  has  not  undertaken  to  stand 
in  place  of  a  father,  while  their  own  means  are  ample.1  In 
such  connection,  again,  it  is  worth  considering  whether  the 
child  renders  any  valuable  services  to  a  remarried  mother  or 
stepfather,  or  confers  a  right  to  such  services.2  In  general,  a 
married  woman  is  not  liable  for  the  support  and  education  of 
her  children  during  the  lifetime  of  a  husband ;  and  if  she  ren- 
ders such  support  she  is  entitled,  at  all  events,  to  an  allowance 
from  the  estates  of  the  children,3  or  if  she  dies  her  estate  is  not 
to  be  charged  at  the  husband;s  instance.4 

Where  the  court  takes  away  from  the  father  the  care  and 
custody  of  the  children,  chancery  does  not  call  in  aid  of  their 
own  means  the  property  of  the  father,  and  it  directs  mainte- 
nance out  of  their  own  fortunes,  whatever  may  be  their  father's 
circumstances.5  But  it  is  held  in  Illinois  that  where  infants 
are  taken  from  the  custody  of  their  father,  and  have  no  property 
of  their  own,  the  father  is  bound  to  support  them  at  such  rate 
as  the  court  may  order.6  Local  statutes  sometimes  affect  the 
rule  in  this  country ;  while  in  the  divorce  courts  an  order  of 
maintenance  for  children  will  sometimes  be  made  on  somewhat 

Matter,  Cas.  temp.  Sugd.  299.    Mother's  entitled  to  a  reasonable  allowance  out 
discretion    overruled.      In    re,    Roper's  of  her  children's  estate  for  their  main- 
Trusts,  L.  R.  11  Ch.  D.  272.  tenance,  where  her  own  means  are  lim- 
1  Mowbray  v.  Mowbray,  64  111.383.  ited.     Wilkes  >:  Rogers,  6  Johns.  566 ; 
A  widow,  on  her  remarriage,  is  not  lia-  Heyward  v.   Cntlibert,  4   Desans.  445; 
Mi-  for  the  maintenance  of  a  child  by  a  <  )sborne  v.  Van  Horn,  2  Fla.360;  Brad- 
former  husband.    Besondy,  Re,  32  Minn,  shaw  v.  Bradshaw,  1    Russ.   528;    46 
385.     Where  a  mother  has  maintained  N.    J.    Eq.    285.     But     the    widowed 
her  infant  child  without  the  order  of  the  mother  who  undertakes  to  support  the 
court,  it   is  held  that,  upou  his  decease,  children  from  her  own   means  cannot 
can   claim    for    past   maintenance  be  compelled  by  her  creditor  to  charge 
only   such  sum   as    will    effectually    in-  their  fund.     133  III-  339. 
demnify  her   for  what  she   has  spent,         '-'  Euglehardt  v.  Yung,  76  Ala.  534. 
without    reference  to    the    amount    of         3  Gladding  v.  Follett,  95  N.  T.  652. 
his  fortune.     Bruin    v.    Knott,   9    Jur.         *  86  Ga.  363. 

979.      She  may    have    made    a    gift    of  •>  Wellesley  V.  Duke  of    Rcanfort,  2 

maintenance  to   him  so  as  to  be  pre-  Russ.  l  ;  Macphers.  Inf.  224. 
eluded    iron,  claiming  anything  after-         6  Cowls  v.  Cowls,  3  Glim.  435.    And 

ward-   by  way  of   recompense.     /"   re  Bee  supra, p.  871;  McCarthy?.  Hinniau, 

Cottrell's    Estate,    L.    I:     1 2    Eq.   566.  35  Conn.  538.    Cf.  144  111.  589. 
But  in  air.  case  the  widowed  mother  is 

376 


CHAP.  II.]  DUTIES   OF   PARENTS.  §  240 

the  same  principle  as  alimony  for  the  wife,  notwithstanding  the 
guilty  husband  loses  their  custody.1  Consonant  with  American 
policy,  where  the  custody  of  the  minor  child  has  been  given  to 
the  mother  by  the  court,  the  father  is  no  longer  legally  liable 
for  the  support  of  the  child,  apart  from  such  an  order  of 
maintenance.2 

If  the  father  is  alive  and  unable  to  maintain  his  child,  main- 
tenance will  be  allowed  without  considering  the  ability  of  the 
mother,  though  she  may  have  a  separate  income.3  And  even 
the  misconduct  of  the  father  will  not  always  exclude  him  from 
the  benefits  of  his  child's  fortune.* 

§  240.  Chancery  Maintenance  ;  Income  ;  Fund.  —  Courts  of 
chancery,  following  a  well-known  principle,  usually  restrict  the 
extent  of  a  child's  maintenance  to  the  income  of  his  property.5 
But  where  the  property  is  small,  and  the  income  insufficient 
for  his  support,  the  court  will  sometimes  allow  the  capital  to 
be  broken ; 6  though  rarely  for  the  purpose  of  a  child's  past 
maintenance  when  his  future  education  and  support  will  be  left 
thereby  unprovided  for.7 

We  have  assumed,  in  the  cases  already  considered,  that  there 
was  some  fund  in  which  the  infants  had  an  absolute  right  or 
interest.  Where  the  interest  is  merely  contingent  the  rule  is 
necessarily  strict.8  Maintenance  cannot  be  allowed  to  infants 
out  of  a  fund  which,  upon  the  happening  of  the  event  contem- 
plated by  the  testator  in  the  bequest  of  the  fund,  will  not  belong 
to  the  infants  but  to  some  other  person.9     And  the  parental 

1  Milford  v.  Milford,  L.  R.lP.&D.  6  lb. ;  Barlow  v.  Grant,  1  Vera.  255 ; 
715;  Schouler,  Hus.  &  Wife,  §  555;  Bridget,-.  Brown,  2  You.  &  C.  C.  181; 
Wilson  v.  Wilson,  45  Cal.  399  ;  Holt  v.  Ex  parte  Green,  1  Jac.  &  W.  253 ;  Os- 
Holt,  42  Ark.  495.  borne  v.  Van  Horn,  2  Fla.  360 ;  New- 

2  Brow  v.  Brightman,  136  Mass.  187.  port  v.  Cook,  2  Aslnn.  332.     See  In  re 

3  Macphers.  Inf.  224;  Haley  v.  Ban-  Coe's  Trust,  4  Kay  &  J.  199;  Matter 
nister,  4  Madd.  275.  of  Bostwick,  4  Johns.   Ch.    100;  Don- 

4  Macphers.  Inf.  251.  See  Allen  v.  ovan  v.  Need  ham,  15  L.  J.  193.  The 
Coster,  1  Beav.  202.  terms  of  the  trust  may  impose  special 

As  to  the  mother's  claim  for  allow-  restrictions.      McKnight   v.    Walsh,  23 

ance  for  the  child's  support  out  of  lands  N.  J.  Eq.  136. 

devised  to  the  child,  who  died,  leaving  7  See   Otte   v.    Becton,  55   Mo.  99; 

the  parents  (who  had  separated)  the  sole  Cox  v.  Storts,  14  Bush,  502. 
heirs,  see  Pierce  v.  Pierce,  64  Wis.  73.  8  Ex  parte  Kebble,  11  Yes.  604. 

5  2  Story,  Eq.  Juris.  §  1355;  Mac-  9  lb.;  Errat  v.  Barlow,  14  Yes.  202  ; 
phers.  Inf.  252.  Turner  v.  Turner,  4  Sim    430;  Matter 

377 


§  241  THE   DOMESTIC    RELATIONS.  [PART   III. 

right  to  charge  a  child's  fund  as  guardian  for  his  education  or 
maintenance  in  any  case  is  at  the  most  a  discretionary  right 
and  not  to  be  compelled.1 

S  241.  Whether  Child  may  bind  Parent  as  Agent  ;  Child's 
Necessaries.  —  Let  us  here  inquire  how  far  the  child  may  bind 
his  father  as  agent.  A  father  is  not  bound  by  the  contracts 
or  debts  of  his  son  or  daughter,  even  for  necessaries,  as  a  rule, 
unless  the  circumstances  show  an  authority  actually  given  or 
to  be  legally  inferred.2  The  principles  of  agency  as  between 
father  and  child  might  seem  analogous  to  those  which  govern 
the  relation  of  husband  and  wife ;  which  last  have  already  been 
considered  at  some  length.  On  the  one  hand,  the  father  should 
be  compelled  to  discharge  his  legal  and  moral  obligations  as 
a  parent,  by  providing  suitable  necessaries ;  on  the  other,  he 
should  not  be  prejudiced  by  the  acts  of  his  imprudent  child. 

If,  then,  the  infant  child  resides  at  home,  it  is  to  be  presumed 
that  the  father  furnishes  whatever  is  uecessary  and  proper  for 
his  maintenance  ;  and  a  proper  support  being  rendered,  under 
such  circumstances,  a  third  person  cannot  supply  necessaries 
and  charge  the  father.  So  far,  all  is  clear.  Wherever  the 
infant  is  sub  potcstatc  parentis  in  fact,  there  must  be  a  clear 
and  palpable  omission  of  duty  in  this  respect,  on  the  part  of 
the  parent,  to  render  him  chargeable,  unless  he  has  conferred 
actual  authority  or  made  express  contract.3  The  converse  of 
this  rule  has  more  than  once  been  suggested  in  our  American 
courts ;  namely,  that  where  the  father  abandons  his  duty,  so 
that  his  infant  child  is  forced  to  leave  his  house,  he  is  liable  for 

of  Davison,  6   Paige,  136.     Where  the  Potter,   17  Vt.  348;  Pidgin  v.  Cram,  8 

father  has  permitted  the  child  tosquan-  N.  II.  350;  Raymond  v.  Loyl,  io  Barb. 

tier   sums    paid   regularly   for   mainte-  483  ;  Tomkins  r.  Tomkins,  3Stockt.  51  ;> ; 

nance,  be  cannot  claim  reimbursement.  Van  Valkenbnrg  v.  Watson,  13  Johns. 

3  Dem.  (N.  V.)  556.     As  to  rule  of  pro-  480;  Mortimore  v.  Wright,  6  M.  &  W. 

cedure    in  securing    maintenance,  see  482;  Kelley  w.  Davis,  49  N.  H.  187. 

Macphers.  Inf.  214  et  seq.,  and  works  on         ■'<  Tomkins    v.   Tomkins,   3    Stockt. 

equity  procedure.     Maintenance  is  fur-  512;  Townsend  i».  Burnham,  33  N.  H. 

considered   under   Guardian    and  27  ;  Clinton  v.  Rowland,  24  Barb.  634 ; 

Ward,  po  >      337,  Keaton  v.  Davis,  is  Geo.  457;  Gotts  v. 

oold  v.  Reynold,  92  Ky.556j  Clark,  78  111.  229;    Rogers  v.  Turner, 

133  Ql.  339.  58  Mo.  116.    The  parent's  contract  or 

-  2  Kent,   Com,    192;    Cromwell  v.  failure,  to  supply  must  be  averred  and 

Benjamin,  41    Barb.  558;    Gordon    v.  shown  by  the  claimant.     159  Penn.  St 


CHAP,  ir.] 


DUTIES    OF   PARENTS. 


§211 


a  suitable  maintenance  furnished  the  child  elsewhere.1  And 
upon  this  doctrine  was  a  Connecticut  case  based  many  years 
ago,  where  an  infant  child  had  "eloped"  from  his  father's  house 
for  fear  of  personal  violence  and  abuse ;  and  his  necessary 
support  and  education  were  furnished  by  a  stranger.2  If  the 
child  left  home,  on  the  other  hand,  without  the  parental  consent 
and  unjustifiably,  no  such  claim  for  necessaries  against  the 
parent  ought  to  be  allowed  upon  any  theory  of  inferential  assent.3 
It  must  be  admitted  that  this  doctrine  of  an  implied  agency, 
against  the  father's  wishes,  such  as  the  common  law  raises  for 
the  wife's  protection,  ought  hardly  to  be  extended  in  an  equal 
degree  to  persons  too  young  to  be  sui  juris ;  that  the  theory 
thus  advanced  is  supported  rather  by  dicta  than  positive  ad- 
judication ;  and  that,  whenever  applied,  such  a  rule  is  to  be  jus- 
tified rather  by  public  policy  than  the  well-understood  liabilities 
of  the  father,  as  defined  by  Blackstone.  We  look  at  the  reports 
and  find  that  in  nearly  every  instance  the  father  was  held  to  be 
discharged  from  the  obligation,  or  else  was  made  liable  on  other 
grounds.  There  can  be  no  doubt  that  a  parent  is  under  a  nat- 
ural obligation  to  provide  necessaries  for  his  minor  children. 
But  how  that  obligation  is  to  be  enforced  is  not  so  clear.4  In 
Vermont  this  doctrine  of  implied  agency,  against  the  father's 
wishes,  was  disapproved  in  a  case  which  discusses  the  subject 
fully  ;  though  the  facts,  it  must  be  conceded,  showed  no  clear 


489;  Conboy  v.  Howe,  59  Conn.  112. 
And  ratification  by  allowing  the  child 
to  wear  or  consume  requires  suitable 
proof.     lb. 

1  Owen  v.  White,  5  Port.  435,  and 
cases  cited  in  the  two  preceding  notes. 

2  Stanton  v.  Willson,  3  Day,  37. 
But  the  point  decided  was  a  different 
one. 

3  See  45  111.  App.  447.  Where 
parents  after  divorce  agreed  that  the 
father  should  have  custody  of  the  minor 
son,  and  the  latter  goes  to  live  with  his 
mother  without  good  cause  or  consent, 
the  mother  cannot  render  the  father 
liable  for  his  son's  board  against  the 
father's  refusal.  Cushman  v.  Hassler, 
82  Iowa,  295. 


4  1  Bl.  Com.  447;  Edwards  v.  Davis, 
16  Johns.  285;  In  re  Ryder,  11  Paige, 
188;  2  Kent,  Com.  190."  In  New  York 
there  is  some  confusion  of  opinion.  Cf. 
Raymond  v.  Loyl,  10  Barb.  483,  with 
New  York  cases,  su/n-a.  But  the  doc- 
trine of  an  implied  agency  of  necessity, 
upon  the  minor  child's  pledge,  was  ap- 
plied in  the  late  case  of  I'orter  v.  Pow- 
ell, 79  Iowa,  151,  where  the  minor 
daughter  while  living  away  from  home, 
and  supporting  herself  by  permission 
from  her  own  earnings,  fell  sick  and 
incurred  a  bill  for  medical  attend- 
ance without  her  father's  knowledge. 
And  see  Cooper  v.  McNamara  (1.894), 
Iowa. 

379 


§  241  THE   DOMESTIC    RELATIONS.  [PART    III, 

omission  of  parental  duty.1  In  fine,  either  an  express  promise, 
or  circumstances  from  which  a  promise  by  the  father  can  be 
inferred,  is  essential.2 

The  latest  English  decisions  are  clearly  against  allowing  the 
child  to  pledge  his  father's  credit  for  necessaries  to  enforce  a 
moral  obligation.  There  must  be  some  contract,  express  or  im- 
plied, in  order  to  charge  him.  If  a  child  be  turned  upon  the 
world  by  his  father,  he  can  only  apply  to  the  parish,  and  they 
will  compel  the  father,  if  of  ability,  to  pay  for  his  support.  Says 
Lord  Abinger :  "  In  point  of  law,  a  father  who  gives  no  authority, 
and  enters  into  no  contract,  is  no  more  liable  for  goods  supplied 
to  his  son,  than  a  brother,  or  an  uncle,  or  a  mere  stranger  would 
be.  From  the  moral  obligation  a  parent  is  under  to  provide  for 
his  children,  a  jury  are,  not  unnaturally,  disposed  to  infer  against 
him  an  admission  of  a  liability  in  respect  of  claims  upon  his  son, 
on  grounds  which  warrant  no  inference  in  point  of  law."3 

But  very  slight  evidence  may  sometimes  warrant  the  infer- 
ence that  a  contract  for  the  infant's  necessaries  is  sanctioned  by 
the  father ;  so  zealous  is  the  court  to  enforce  a  moral  obligation 
wherever  it  can.  English  authority  to  the  same  effect  is  not 
equally  pointed;4  but  the  American  rule  is  certainly  humane 
and  liberal  in  this  respect.  Thus,  the  father  is  held  bound  for 
necessaries,  where  he  knows  the  circumstances,  and  makes  no 
objection.5  And  for  the  expenses  of  education  and  maintenance 
furnished  on  his  general  consent,  and  in  his  negligence.6  So, 
too,  being  liable  once  to  a  third  person,  the  father  may  be  held 

1  Gordon  v.  Potter,  17  Vt.  348.  4  Blackburn   v.   Mackey,   1    Car.  & 

2  McMillen  v.  Lee,  78  111.  443 ;  Free-  P.  1  ;  Law  v.  Wilkin,  6  Ad.  &  El.  781  ; 
man  v.  Robinson,  38  N.  J.  L.  383  ;  Tom-  cases  of  doubtful  legal  authority.  See 
kins  v.  Tomkins,  3  Stockt.  517.     As  to  Macphers.  Inf.  514,  515. 

the  wife's  authority  to  bind  her  husband  6  Swain  v.  Tyler,  26  Vt.  9  ;  Thayer 

for  the  child's  necessaries,  see  Schouler,  v.    White,    12   Met.    343;    Fowlkea    v. 

Has.  &  Wife,  §  101 ;  supra,  §§  61,  237,  Baker,   29   Tex.    135.     As   where    he 

239.      One   who   encourages   wife   and  knew   that   another   was  boarding   his 

child    to  live  apart  from  the  husband  minor  child  with  expectation  of  reward, 

and  fat  hi  t  is  the  less  entitled  to  recover  Clark  ;,<.  Clark,  46  Conn.  586.     Or  upon 

for  the  necessaries  of  either.    Sclmuckle  written    agreement   with    his    divorced 

v.  Bierman,  89  111.  154.  wife,  who  retains  the  children.     Court- 

:''  Mortimore   V.  Wright,  6  M.  &  W.  right  v.  Courtright,  40  Mich.  633.     Cf. 

482.    And  see  Shelton  v.  Springett,  11  Baldwin  v.  Foster,  188  Mass.  449. 
c     B.  452;    20  E.   L.  &  Eq.  281  ;  Sea-         8  Thompson  v.  Dorsey,  4  Md.  Ch 

borne  v.  Maddv,  9  Car.  &  P.  497.  149. 
380 


CHAP.  II.]  DUTIES   OF   PARENTS.  §  241 

liable  afterwards  by  implication,  unless  his  revocation  is  made 
clear  and  consistently  adhered  to.1  Doubtless  any  father  may 
contract  for  supplies,  necessary  or  unnecessary,  on  his  child's 
account,  if  he  choose  to.2 

Yet  the  rule  of  principal  and  agent  is  to  be  reasonably  en- 
forced ;  and  in  all  cases  where  there  appears  neither  palpable 
moral  delinquency  on  the  part  of  the  parent,  nor  evidence  of 
authority  actually  conferred  upon  his  son,  nor  a  contract  by  the 
parent  himself  or  his  other  agents,  the  parent  cannot  be  held 
liable  for  the  general  contracts  of  the  child.  A  conditional  offer 
to  pay  for  goods  ordered  of  a  stranger  by  the  child  must  have 
been  clearly  accepted  in  order  to  constitute  such  ratification  as 
will  bind  the  parent  who  makes  it.3  And  in  numerous  instances 
have  courts  refused  to  make  the  father  liable  on  the  ground  of 
an  implied  agency  to  the  child.4  So  where  a  child  has  attained 
full  age,  the  presumption  is  that  he  will  bind  himself  by  his 
own  contracts.  Under  the  latter  circumstances,  a  mere  request 
to  furnish  necessaries  does  not  bind  the  father,  though  the  son 
be  living  with  him ;  while  it  is  very  clear  that  the  father  may 
even  thus  bind  himself  by  his  own  independent  promise.5 

Whenever  a  minor  son  or  daughter  has  left  the  father's  home, 
the  cause  should  be  ascertained ';  for  the  disobedience  of  children 
is  not  to  be  encouraged  in  any  event.6  Under  the  most  favora- 
ble aspect  of  the  infant's  right  to  bind  his  father  as  agent,  a  third 
person  furnishing  goods  must  take  notice,  at  his  peril,  of  what 
is  necessary  for  the  infant  according  to  his  precise  situation.7 

1  Plotts  v.  Rosebury,  4  Dutch.  14G;  5  Boyd  v.  Sappiugton,  4  Watts,  247 ; 
Murphy  v.  Ottenheimer,  84  111.  39.  Patton  v.  Hassiuger,  69  Peun.  St.  311. 
And  see  Dearie  v.  Anuis,  14  Me.  26.  And  see  Mills  v.  Wyman,  3  Pick.  207; 
Notice  to  a  third  person  may  be  waived  Wood  v.  Gills,  Coxe,  449  ;  Norris  v. 
afterwards  by  the  parent's  acts.  Bailey  Dodge's  Adm'r,  23  Ind.  190;  Kernodle 
v.  King,  41  Conn.  365.  v.    Caldwell,    46    Ind.    153;  White    v. 

2  Bryan   v.   Jackson,   4   Conn.   288.  Mann,  110  Ind.  74. 

And   see    Brown   v.    Deloach,  28    Ga.  6  Raymond  v.  Loyl,  10  Barb.  483  ; 

486;  Deane  v.  Annis,  14  Me.  26  ;  Har-  Angel  v.  McLellan,  16  Mass.  28;  Weeks 

per  v.  Lemon,  38  Ga.  227.  v.  Merrow,  40  Me.  151. 

3  Andrews  v.  Garrett,  6  C.  B.  N.  s.  262.  t  Van  Valkenburgh  v.  Watson,  13 
*  Eitel  v.  Walter,  2  Bradf.  Sur.  287  ;  Johns.  480;  Gotts  v.  Clark,  78  111.  229. 

Raymond  v.  Loyl,  10  Barb.  483;  Bush-    Cf.    Murphy    v.    Ottenheimer,    84    111. 
nell  v.  Bishop  Hill  Colony,  28  111.  204;     39. 
Tyler  v.  Arnold,   47    Mich.    564.     See 
Loomis  v.  Newhall,  15  Pick.  159. 

381 


§  242  6  THE    DOMESTIC    RELATIONS.  [PART   III. 

And  the  oral  promise  of  a  father  to  pay  a  debt  of  his  child  not 
incurred  for  necessaries,  in  consideration  of  the  creditors  for- 
bearing to  sue  the  child,  must  be  treated  as  a  promise  to  pay 
the  debt  of  another,  and  hence,  under  the  Statute  of  Frauds,  not 
enforceable.1 

§  241  a.  Child's  Necessaries  ;  Miscellaneous  Points.  —  A  claim 
against  a  parent  for  his  minor  child's  necessaries  may  be  out- 
lawed by  limitations.2  Furthermore,  for  supplies  furnished  the 
infant  after  the  parent's  death,  the  parent's  executor  or  adminis- 
trator should  not  be  sued  ;  it  is  rather  the  infant's  new  guar- 
dian, and  the  fund  accruing  to  the  child  on.  distribution  of  the 
parental  estate,  to  which  the  claimant  must  look  for  indemnity.3 

§  242.  Duty  of  Providing  a  Trade  or  Profession.  —  The  parent's 
duty,  according  to  some  authorities,  also  extends  to  providing  the 
children  with  a  profession  or  trade  as  well  as  a  suitable  educa- 
tion. How7  far  the  duty  of  competent  provision  extends,  must 
depend  upon  the  condition  and  circumstances  of  the  father. 
Kent  observes  that  this  duty  is  not  susceptible  of  municipal 
regulations,  and  is  usually  left  to  the  dictates  of  reason  and 
natural  affection.4 

§  242  a.  Liability  for  Minor  Child's  Funeral  Expenses. —  A 
father  is,  in  general,  liable  for  the  decent  funeral  expenses  of  his 
deceased  minor  child.5 

§  242  b.  Value  of  Parental  Education,  Support,  &c.  —  In 
assessing  damages  recoverable  by  a  minor  child  for  the  death  of 
a  parent  by  the  negligence  of  carriers,  courts  incline  sometimes 

1  Dexter    v.    Blanchard,    11     Allen,  gan,  60  N.  H.   107.      Slight   evidence 

305.     Goods  being  sulci  to  the  minor  will  support  the  allegation  of  a  promise 

without   the   father's  knowledge,  order,  by  a  father  to  pay  for  his  child's  sup- 

>.r  consent,  bis  subsequent  promise  to  port.    45  Ark.  2.37;  p.  380. 

p;i .    therefor    is    without    binding  con-  4  2   Kent,  Com.  202.     It   is   within 

sideration.     Freeman  v.    Robinson,  38  the  police  power  of  the  legislature  to 

N.  J.  L.  383.  prohibit  a  parent  from  putting  a  young 

This  rule  of  agency  is  sometimes  female  child  upon  exhibition  as  a  pro- 
allowed  to  operate  for  the  parent's  own  fessional  dancer,  on  considerations  of 
benefit  at                 i  third  party;  the  injury,  whether  to  the  child's  health  or 

child  who  could  not   hind    himself  heing     morals.       People    v.    ICwer,    141    N.    Y. 

treated  as  the  parent's  agent.     Darling  129. 

-  [owa,  96.  6  See  Sullivan  v,  Horner,  41  N.  J. 

-  Pryor  v.  West,  72  Ga.  140.  Eq.   299;    108   Penn.    St.   247;    supra, 

3  Ib.f  |S  337,    Hi;  Burns  v.  Madi-  §§  199,211. 

382 


CHAP.  III.]  EIGHTS    OF   PARENTS.  §   2-14 

to  consider  the  reasonable  prospective  expectation  of  pecuniary 
benefit  to  that  child  by  way  of  education  and  support,  and  physi- 
cal and  moral  training,  had  that  parent  survived.1 


CHAPTER   III. 

THE    EIGHTS    OF   PARENTS. 


§  243.  Foundation  of  Parental  Rights.  —  The  rights  of  parents 
result  from  their  duties,  being  given  them  by  law  partly  to  aid 
in  the  fulfilment  of  their  obligations,  and  partly  by  way  of  rec- 
ompense.2 As  they  are  bound  to  maintain  and  educate,  the  law 
has  given  them  certain  authority  over  their  children,  and  in  the 
support  of  that  authority  a  right  to  the  exercise  of  such  discipline 
as  may  be  requisite  for  the  discharge  of  their  important  trust. 
This  is  the  true  foundation  of  parental  power.3 

§  244.  Parental  Right ;  Chastisement ;  Indictment  for  Cruelty, 
&c.  —  Some  of  the  ancient  nations  carried  the  parental  author- 
ity beyond  all  natural  limits.  The  Persians,  Egyptians,  Greeks, 
Gauls,  and  Romans  tolerated  infanticide.  Under  the  ancient 
Roman  laws  the  father  had  the  power  of  life  and  death  over  his 
children,  on  the  principle  that  he  who  gave  had  also  the  power 
to  take  away  ; 4  and  thus  did  law  attribute  to  man  those  func- 
tions which  belong  only  to  the  Supreme  Being.  This  power  of 
the  father  was  toned  down  in  subsequent  constitutions,  and  in 
the  time  of  the  Emperor  Hadrian  the  wiser  maxim  prevailed, 
"  Patrice  potcstas  in  pictate  debet,  non  in  atrocitate  consistere ; " 
for  which  reason  a  father  was  banished  who  had  killed  his  son. 
The  Emperor  Constantine  made  the  crime  capital  as  to  adult 
children ;  and  infanticide  was  under  Valentinian  and  Yalens 
punishable   by   death.      Thus   was    the    doctrine    of    paternal 

1  Tuteur  v.  Chicago  R.  77  Wis.  505 ;         8  2  Kent,  Com.  203. 

Railway  Co.  v.  Maddry,  57  Ark.  306.  *  Cod.  8,  47,  10;  1  Bl.  Cora.  452. 

2  1  Bl.  Com.  452. 

383 


§  244  THE   DOMESTIC   RELATIONS.  [PART   III. 

supremacy  gradually  reduced,  though  at  the  civil  law  never 
wholly  abandoned.1 

The  common  law,  far  more  discreet,  gives  the  parent  only  a 
moderate  degree  of  authority  over  his  child's  person,  which  au- 
thority relaxes  as  the  child  grows  older.  With  the  progress  of 
refinement,  parents  have  learned  to  enforce  obedience  by  kind- 
ness rather  than  severity ;  and  although  the  courts  are  reluctant 
to  interfere  in  matters  of  family  discipline,  they  will  discounte- 
nance every  species  of  cruelty  which  goes  by  the  name  of  paren- 
tal rule.  The  common  law  gives  the  right  of  moderate  correction 
of  the  child  in  a  reasonable  manner ;  "  for,"  it  is  said,  "  this  is 
for  the  benefit  of  his  education."  2  But  at  the  same  time  the 
parent  must  not  exceed  the  bounds  of  moderation,  and  inflict 
cruel  and  merciless  punishment ;  for  if  he  do,  he  is  liable  to  be 
punished  by  indictment.3  And  he  may  be  found  guilty  of  man- 
slaughter, or  even  murder,  under  gross  circumstances.4  Thus, 
where  a  father  put  his  child,  a  blind  and  helpless  boy,  in  a  cold 
and  damp  cellar,  without  fire,  during  several  days  in  midwinter, 
giving  as  his  only  excuse  that  the  boy  was  covered  with  vermin, 
he  was  rightly  held  subject  to  indictment  and  punishment  for 
such  wanton  cruelty.5 

So  may  a  parent  at  the  common  law  be  indicted  for  exposure 
and  neglect  of  his  children ;  and  the  heinousness  of  the  offence 
depends  in  a  great  measure  upon  the  proof  of  simple  negligence 
or  wilful  cruelty.  The  parent,  too,  who  suffers  his  little  child 
to  starve  to  death,  commits  murder.6     But  the  child's  tenderness 

1  1  151.  Com.  452 ;  2  Kent,  Com.  8  The  law  reluctantly  interferes 
204;  1  Ileinec.  Antiq.  Rom.  Jur.  9  ;  Dr.  criminally  in  such  cases  unless  the  pa- 
Ta ;.  lor,  Civ.  Law,  403-406  ;  Forsyth,  rental  chastisement  produces  perma- 
( lustody,  3.  nent  injury  or  was  maliciously  Inflicted. 

2  1  Hawk.  P.  C.  130;  1  Bl.  Com.  452.  State  v.  Jones,  95  N.  C.  588;  89  Ala. 
One  in  loco  parentis,  as  a  stepfather  40.  But  cf.  Powell  v.  State,  67  Miss. 
may  become,  lias  the  right  of  moderate  719. 

correction.     Gorman  v.  State,  42  Tex.  4  1    Buss.    Crimes,    Grea.   ed.  490; 

221  ;  Marshall   v.  Reams,  -'$2  Fla.  499;  Regina  v.  Edwards,  8  Car.  &  P.  611  ;  2 

State  v.  Alford,  68  N.  C.  322.     And  see,  Bish.  Crim.  Law,  §  714. 

;.-  to  the  analogous  case  of  a  Bchool-  5  Fletcher  v.   People,  52  111.  395; 

teacher,  State  v.   Barton,  45  Wis.  150 j  Johnson    v.    State,    2     Humph.    283; 

Danenhoffer  v.  State,  69  lad.  295.     So,  Hinkle  v.  State,  127  End.  190. 

too,  as  against  a  criminal  prosecution,  64   151.  Com.  182,    183;  2   Bishop, 

I  Ala,  16,  concerning  an  authorized  Crim.   Law,  §§  688,  712;   Regina   v. 

friend  of  the  family.  White,  L.  R.  1   C.  C.  811.     Wilfully 

384 


CHAP.  III.]  EIGHTS   OP   PARENTS.  §  245 

of  age  and  helplessness  are  elements  in  such  cases ;  and  when 
children  grow  up  they  are  presumed  to  provide  for  their  urgent 
wants. 

§  245.  Parental  Custody  ;  Common-law  Rule  ;  English  Doc- 
trine. —  The  topic  of  parental  custody  is  one  of  absorbing  im- 
portance in  England  and  America ;  and  its  principles  have 
received  the  most  ample  discussion  in  the  courts  of  both  coun- 
tries. The  fundamental  principle  of  the  common  law  was  that 
the  father  possessed  the  paramount  right  to  the  custody  and 
control  of  his  minor  children,  and  to  superintend  their  educa- 
tion and  nurture.1  The  mother,  as  such,  had  little  or  no 
authority  in  the  premises.2  The  Roman  law  enjoined  upon 
children  the  duty  of  showing  due  reverence  and  respect  to  the 
mother,  and  punished  any  flagrant  instance  of  the  want  of  it ; 
but  beyond  this  it  seems  to  have  recognized  no  claim  on  her 
part.3  Indeed,  the  father  is  permitted  by  Anglo-Saxon  policy 
to  perpetuate  his  authority  beyond  his  own  life ;  for  he  may 
constitute  a  testamentary  guardian  of  his  infant  children.4 

In  case  there  is  no  father,  then  the  mother  is  entitled  to  the 
custody  of  the  children  ;  supposing,  of  course,  the  rights  of  no 
testamentary  guardian  intervene.5  She  has,  as  natural  guardian, 
a  right  to  the  custody  of  the  person  and  care  of  the  education  of 
her  children  ;  "  and  this  in  all  countries,"  said  Lord  Hardwicke, 
"  where  the  laws  do  not  break  in." 6  The  priority  of  the  sur- 
viving mother's  right  to  custody  is  frequently  a  matter  of  statute 
regulation ; 7  but  her   absolute    ri^ht  on    remarriage   is  not  so 


permitting  a  child's  life  to  be  endan-  4  Stat.  12  Car.  IT.  c.  24,  re-enacted  in 
gered  for  want  of  proper  food  or  med-  most  of  the  United  States.     See  Guar- 
ical    treatment,    legislation    sometimes  dian  and  Ward,  infra,  §§  332,  333. 
makes  an  indictable  offence  as  against  5  See  Guardian  and  Ward,  infra. 
a  parent  or  one  in  his  stead.     Cowley          6  Villareal  v.  Mellish,  2  Swanst.  536  ; 
v.  People,  83  N.  Y.  464.  Forsyth,  Custody,  11,  109;  2  Kent,  Com. 
i  Ex  parte  Hopkins,  3  P.  Wms.  151  ;  506;  People   v.  Wilcox,  22   Barb.  178; 
2  Story,  Eq.  Juris.    §§   1341,   1342;   2  Osborn   v.   Allen,    2   Dutch.   388.      So 
Kent,  Com.  205  ;  Forsyth,  Custody,  10  ;  where  the  father  is  sentenced  to  trans- 
People  v.  Olmstead,  27   Barb.    9,   and  portation.     Ex  parte   Bailey,   6   Dowl. 
cases    cited;     Ex    parte    M'Clellan,    1  P.  C.  311. 
Dowl.  P.  C.  34.  7  2  &  3  Vict.  c.  54  ;  Mass.  Gen.  Sts. 

2  See  1  Bl.  Com.  453.  c.  109,  §  4 ;  State  v.  Scott,  10  Fost.  274  ; 

3  Cod.  8,  tit.  47,  §  4;  Forsyth,  Cus-  Striplin  v.  Ware,  26  Ala.  87.    See  Hey- 
tody,  5.  ward  v.  Cuthbert.  4  Desaus.  445. 

25  385 


§  246  THE   DOMESTIC   EELATIOXS.  [PART   IIL 

clearly  recognized.  Her  claims,  as  we  shall  see  hereafter,  may 
conflict  with  those  of  a  guardian.  If  the  husband  and  father 
deserts  his  family,  his  wife  becomes  fairly  entitled  to  the  custody 
and  control  of  their  infant  children,  at  all  events  as  against  all 
third  parties  and  while  his  desertion  continues.1 

§  246.  Chancery  Jurisdiction  in  Custody  ;  Common  Law  Over- 
ruled. —  Were  these  invariable  rides,  uncontrolled  by  the  courts, 
unchanged  by  statute,  this  common-law  doctrine  of  custody 
would  be  as  simple  of  application  as  unjust.  It  is  neither. 
And  the  courts  of  chancery,  in  assuming  a  liberal  jurisdiction 
over  the  persons  and  estates  of  infants,  soon  made  the  claims  of 
justice  override  all  considerations  of  parental  or  rather  paternal 
dominion,  at  the  common  law.2  Thus  Lord  Thurlow,  in  a  case 
where  it  appeared  that  the  father's  affairs  were  embarrassed, 
that  he  was  an  outlaw  and  resided  abroad,  that  his  son,  an  in- 
fant, had  considerable  estate,  and  that  the  mother  lived  apart 
from  her  husband  and  principally  directed  the  child's  education, 
restrained  the  father  from  interfering  without  the  consent  of 
two  persons  nominated  for  that  purpose ;  and,  with  reference  to 
the  objection  that  the  court  had  no  jurisdiction,  he  added  that 
he  knew  there  was  such  a  notion,  but  he  was  of  opinion  that 
the  court  had  arms  long  enough  to  reach  such  a  case  and  to 
prevent  a  father  from  prejudicing  the  health  or  future  prospects 
of  the  child ;  and  he  signified  that  he  should  act  accordingly.3 
But  the  leading  case  on  this  subject  is  that  of  Wettesley  v.  Tlie 
Duke  of  Beaufort,  which  went  on  appeal  from  Lord  Eldon  to 
the  House  of  Lords  ;  and  in  which  the  learned  Lord  Chancellor's 
judgment  was  unanimously  affirmed.4 

1  Window  >-.  St;ite,  02  Ala.  78.  Macclesfield,  to   the  effect  that  where 

2  2  Stury,  Eq.  Juris.  §  1341.  And  there  is  reasonable  ground  to  believe 
.-'•"  Butler  <-.  Freeman,  Ambl.  302.  that,  the  children  would  not  he  properly 

'■''  Creuze  v.    Hunter,   2   Bro.    C.  C.  treated,  the  court  would  interfere  with- 

:  2  Cox,  242.     And  see  Whitfield  out  waiting  further,  upon  the  principle 

v.  Hales,  12  Ves    192.  that  preventing  justice  was  better  than 

1  2  Rubs.  1  ;  Wellesley  v.  Wellesley,  punishing  justice.     Duke  of  Beaufort  v. 

•..  -    IlM.  Berty,  1  1'.  Wins.  To:;,  cited  in  Welles- 

In   this    latter   case    children   were  ley  v.  Dnke  of  Beaufort,  supra. 

taken  from  a  father  who  was  living  in  The  evidence  showed  that  the  con- 

adultery.     In  the  course  of  his  elabo-  duel   of  the   father   was  of  the  most 

ratejudgmenl  in  this  case,  Lord  Eldon  profligate  and  immoral  description.     It 

ibation  a  dictum  of  Lord  appeared   that   lie   had    ill-treated    his 

386 


CHAr.  III.]  EIGHTS    OF   PARENTS.  §  246 

But  the  result  of  the  English  authorities  is  to  establish  the 
principle,  independently  of  statutory  provisions,  that  the  Court 
of  Chancery  will  interfere  to  disturb  the  paternal  rights  only  in 
cases  of  a  father's  gross  misconduct;  such  misconduct  seeming, 
however,  to  be  regarded  with  reference  rather  to  the  interests 
of  the  child  than  the  moral  delinquency  of  the  parent.  If  the 
father  has  so  conducted  himself  that  it  will  not  be  for  the  bene- 
fit of  the  infants  that  they  should  be  delivered  to  him,  or  if  their 
being  with  him  will  injuriously  affect  their  happiness,  or  if  they 
cannot  associate  with  him  without  moral  contamination,  or  if, 
because  they  associate  with  him,  other  persons  will  shun  their 
society,  the  court  will  award  the  custody  to  another.1  It  is 
held  that  chancery  has  nothing  to  do  with  the  fact  of  the 
father's  adultery,  unless  he  brings  the  child  into  contact  with 
the  woman.2  But  unnatural  crime  is  otherwise  regarded.3 
Atheism,  blasphemy,  irreligion,  call  for  interference,  when  the 
minds  of  young  children  may  be  thereby  poisoned  and  cor- 
rupted ;  although  in  matters  of  purely  religious  belief  there  is 
of  course  much  difficulty  in  defining  that  degree  of  latitude 
which  should  be  allowed.  Says  Lord  Eldon,  "  With  the  reli- 
gious tenets  of  either  party  I  have  nothing  to  do,  except  so 
far  as  the  law  of  the  country  calls  upon  me  to  look  on  some 
religious  opinions  as  dangerous  to  society."  4 

Mere  poverty  or  insolvency  does  not   furnish  an  adequate 

wife,  continued  his  adulterous  connee-  trust."    Wellesley  v.  Wellesley,  2  Bligh, 

tion  to  the  time  of  judicial  proceedings,  n.  s.  141  (1828). 

and  in  his  letters  to  his  young  children  1  Anonymous,   11    E.  L.  &  Eq.  281  ; 

had    frequently    encouraged    them    in  s.  c.  2  Sim.  n.  s.  54  ;  Forsyth,  Custody, 

hahits   of   swearing   and   keeping    low  52 ;  De  Manneville  o.  De  Manneville, 

company.      Lord    Redesdale,     in     the  10  Ves.  52;  Warde  v.  Warde,  2  Phil, 

course  of  his  opinion  hefore  the  House  786. 

of  Lords,  repudiated  emphatically  the  -  Bnll  v.  Ball,  2  Sim.  35 ;  Lord  El- 
insinuation  that  paternal  power  is  to  he  don,  n.  6  to  Lyons  v.  Blenkin,  Jac.  254. 
considered  more  than  a  trust.  "  Look  The  English  Divorce  Act  indicates  the 
at  all  the  elementary  writings  on  the  peculiar  views  prevalent  in  that  coun- 
suhject,"  he  adds  :  "  they  say  that  a  try  as  to  adultery  committed  by  a  mar- 
father  is  intrusted  with  the  care  of  his  ried  man.  Schouler,  Hus.  &  Wife, 
children ;   that  he  is  intrusted  with  it  §  506. 

for  this  reason,  because  it  is  supposed  3  Anonymous,  11  E.  L.  &  Eq.  281 ; 

his  natural  affection  would  make  him  s.  c.  2  Sim.  x.  s.  34. 
the  most  proper  person  to  discharge  the  4  Lyons   v.   Bleukin,  Jac.  256.     See 

supra,  §§  220,  235,  notes. 

387 


§247 


THE   DOMESTIC   RELATIONS. 


[PART   III. 


ground  for  depriving  the  father  of  his  children ;  not  even 
thouo-h  a  fund  is  offered  for  their  benefit,  conditioned  upon  the 
surrender  of  their  custody.1  Yet  so  solicitous  is  chancery  for 
the  welfare  of  its  wards,  that  it  seems  indisposed  to  sacrifice 
their  large  pecuniary  opportunities  to  the  caprice  of  the  natural 
protector.  Thus  far  has  chancery  carried  its  exception,  that  if 
property  be  settled  upon  an  infant,  upon  condition  that  the 
father  surrenders  his  right  to  the  custody  of  its  person,  and  he, 
by  acquiescing  for  a  time,  and  permitting  the  child  to  be  edu- 
cated in  a  manner  conformably  to  the  terms  of  the  gift  or 
bequest,  encourages  corresponding  expectations,  he  will  not  be 
allowed  to  disappoint  them  afterwards  by  claiming  possession 
of  the  infant.  He  has  in  such  a  case  "  waived  his  parental 
right."  2 

§  247.  Custody  ;  English  Rule ;  Statute.  —  The  English  rule, 
up  to  the  year  1839,  was,  therefore,  that  the  father  is  entitled 
to  the  sole  custody  of  his  infant  child ;  controllable,  in  general, 
by  the  court  only  in  case  of  very  gross  misconduct,  injurious  to 
the  child.  Such  a  state  of  things  was  uujust,  since  it  took  little 
account  of  the  mother's  claims  or  feelings  in  a  matter  which 
most  deeply  interested  her.  This  finally  led  to  the  passage  of 
statute  2  &  3  Vict.  c.  54,  known  as  Justice  Talfourd's  Act,  which 


1  Ex  parte  Hopkins,  3  P.  Wms.  152  ; 
Colston  v.  Morris,  Jac.  257,  /;.  11; 
Macphers.  Inf.  142,  143;  Forsyth,  Cus- 
tody, 37  ;  Earl  &  Countess  of  West- 
meath,  Jac.  251,  7i.  c.  But  see  Ex  parte 
Mountfort,  15  Yes.  445. 

2  Per  Lord  Hardwicke,  Blake  v. 
Leigh,  Ambl.  307;  Powell  v.  Cleaver, 
2    Bro.  C.  C.  499  ;  Creuze  v.  Hunter,  2 

242;    Forsyth,   Custody,   38,   53; 
Lyons  v.  Blenkin,  Jac.  254,  2G2. 

The  English  courts  of  common  law 
likewise  interfere  in  questions  relating 
to  the  custody  of  infants  by  writ  of 
"./ pus,  which,  in  general,  lies  to 
bring  "])  persons  who  are  in  custody, 
;ind  who  are  alleged  to  be  subject  to 
illegal  restraint.  Macphers.  Inf.  152; 
/  arte  Glover,  4  DowL  P.  C.  293; 
i  th,    Custody,    17,    54;    In  re  Pul- 

"  388 


brook,  11  Jur.  185  ;  In  re  Fynn,  2  De  G. 
457;  s.  c.  12  Jur.  713;  Rex  v.  Green- 
hill,  4  Ad.  &  El.  624.  Lord  Mansfield 
once  said  that  the  common-law  court  is 
not  bound  to  deliver  an  infant,  when 
set  free  from  illegal  restraint,  over  to 
anybody,  nor  to  give  it  any  privilege. 
Rex  v.  Delarel,  3  Burr.  14.10 ;  1  W.  Bl. 
409.  But  the  later  English  rule  is  that 
where  a  clear  right  to  the  custody  is 
shown  to  exist  in  any  one,  the  court  has 
no  choice,  but  must  order  the  infant  to 
be  delivered  up  to  him.  Hex  v.  Isley, 
5  Ad.  &  El.  441.  This  jurisdiction  is 
less  ample  than  that  of  the  chancery 
courts,  to  whose  authority  it  must  be 
considered  subservient.  See  Wellesley 
v.  Wellesley,  2  Bligh,  n  s.  13G,  142*; 
Ex  parte  Skinner,  9  Moore,  278. 


CHAP.  HI.]  RIGHTS   OF   PARENTS.  §  248 

introduced  important  changes  into  the  law  of  parental  custody,1 
but  does  not  appear  to  have  interfered  with  the  father's  right  of 
custody  further  than  to  introduce  new  elements  and  considera- 
tions under  which  that  right  is  to  be  exercised.  This  act  pro- 
ceeds upon  three  grounds  :  First,  it  assumes  and  proceeds  upon 
the  existence  of  the  paternal  right.  Secondly,  it  connects  the 
paterual  right  with  the  marital  duty  and  imposes  the  marital 
duty  as  the  condition  of  recognizing  the  paternal  right.  Thirdly, 
the  act  regards  the  interest  of  the  child.2  If  the  two  considera- 
tions of  marital  duty  to  be  observed  towards  the  wife  and  of  the 
interest  of  the  child  can  be  attained  consistently  with  the 
father's  retaining  the  custody  of  the  child,  his  common-law 
paternal  right  will  not  be  disturbed ;  otherwise  it  may  be.3 
There  is  a  later  infants'  custody  act  (36  &  37  Vict.  c.  12),  under 
which  the  surrounding  circumstances  of  a  case  will  be  still  more 
sedulously  regarded,  against  a  father's  own  application  for  cus- 
tody ;  and  paternal  right,  the  marital  duty,  and  the  interest  of 
the  child  are  all  considered.4 

§  248.  Parental  Custody  ;  American  Rule.  —  In  this  country 
the  doctrine  is  universal  that  the  courts  of  justice  may,  in  their 
sound  discretion,  and  when  the  morals  or  safety  or  interests  of 
the  children  strongly  require  it,  withdraw  their  custody  from 
the  father  and  confer  it  upon  the  mother,  or  take  the  children 
from  both  parents  and  place  the  care  and  custody  of  them  else- 
where.5 The  rule  as  to  legal  preference  is  essentially  that  of 
the  common  law,  with,  however,  an  increasing  liberality  in  favor 
of  the  mother,  strengthened,  in  no  slight  degree,  by  positive 
legislation.  Our  rule  of  procedure  is  somewhat  different  from 
that  noticeable  in  the  English  system.     For  though  sometimes 

1  Ex  parte  Woodward,  17  Jur.  56;  the  custody  of  a  child  three  years  old 
Forsyth,  Custody,  137.  See  Forsyth,  was  given  to  the  mother,  her  husband 
lb.  139,  140.  having  deserted  her.     In  re  Taylor,  4 

2  Per  Turner,  V.  C.  In  Ex  parte  Ch.  D.  157.  And  see  Brown,  Re,  13 
Woodward,  17  E.  L.  &  Eq.  77  ;  17  Jur.  Q.  B.  D.  614  ;  Elderton,  Re,  25  Ch.  D. 
56.  220.     Grounds   upon  which  a  parent's 

3  lb.  See  also  Warde  v.  Warde,  2  right  may  be  interfered  with  consid- 
Phil.  787.     Stat.  3  &  4  Vict.  c.  90,  em-  ered,  [1893]  2  Q.  B.  232. 

powers  chancery  to  assign  the  care  and  5  2  Kent,  Com.  205,  and  cases  cited; 

custody  of  infants  convicted  of  felony.        1    Story,  Eq.  Juris.   §  1341  ;  45   N   J. 

4  Under  statute  36  &  37  Vict.  c.  12,     Eq.  283. 

389 


§  248  THE   DOMESTIC    RELATIONS.  [PART  III. 

the  right  of  custody  is  to  be  determined  by  habeas  corpvs,  and 
sometimes  by  proceedings  in  equity,  while  very  frequently  inci- 
dental to  divorce  suits ;  in  any  case,  the  circumstances  will  be 
fully  considered  by  the  court,  and  a  decision  rendered  on  general 
principles  of  justice.  Nor  is  the  decision  so  permanent  that  a 
change  of  circumstances  might  not  lead  to  a  change  of  custody.1 
The  father  has,  in  America,  the  paramount  right  of  custody 
independently  of  all  statutes  to  the  contrary.2  But  this  para- 
mount right  may  be  forfeited  by  his  misconduct.  Nor  do  the 
decisions  in  our  courts  go  to  the  extent  of  the  English  rule  in 
sustaining  the  husband  against  his  wife,  despite  his  immoral 
behavior  or  marital  misconduct.  "  It  is  an  entire  mistake,"  says 
Judge  Story,  "  to  suppose  that  the  court  is  bound  to  deliver 
over  the  infant  to  its  father,  or  that  the  latter  has  an  absolute 
vested  right  in  the  custody," 3  The  cardinal  principle  relative 
to  such  matters  is  to  regard  the  benefit  of  the  infant ;  to  make 
the  welfare  of  the  children  paramount  to  the  claims  of  either 
parent.4  While  States  differ  as  to  the  extent  of  the  father's 
claims  in  preference  to  the  mother,  in  this  latter  principle  they 
all  agree  ;  and  judicial  precedents,  judicial  dicta,  and  legislative 
enactments  all  lead  to  one  and  the  same  irresistible  conclusion. 
The  primary  object  of  the  American  decisions  is,  then,  to  secure 
the  welfare  of  the  child,  and  not  the  special  claims  of  one  or 
the  other  parent.  The  English  case  of  Rex  v.  Greenhill,5  which, 
in  effect  enabling  the  father  to  take  his  children  from  his  blame- 
less wife  and  place  them  in  the  charge  of  a  woman  with  whom 

1  Green  v.  Campbell,  35  W.  Va.  4  Case  of  Waldron,  13  Johns.  418; 
G98.  People    v.   Mercein,   3   Hill,  399;   Ex 

2  2  Kent,  Com.  205;  Peoples.  Mer-  parte  Schumpert,  6  Rich.  344;  Wood 
cein,  3  Hill,  399;  People  v.  Olmstead,  v.  "Wood,  3  Ala.  756;  Gishwiler  n.  Do- 
27  Barb.  9;  Miner  v.  Miner,  11  111.43;  dez,  4  Ohio  St.  615.  And  thus  may  the 
Cole  v.  Cole,  23  Iowa,  433;  Benson  v.  mother  be  preferred  in  a  suitable  case 
Walt.-,  40  Ind.  170  ;  Rush  v.  Vanvacter,  to  the  father.  See  Moore  V.  .Moore,  66 
9  W.  Va.  600;  State  v.  Baird,  6  C.  E.  Ga.  836.  In  the  case  of  several  chil- 
Green,  384;  Smith  ivt'r,  13  111.  138.  dren,  and  parents  equally  fit,  a  division 
But  Bee  Gishwiler  v.  Dodez,  4  Ohio  St.  of  custody  agreeably  to  the  several  in- 
615.  Thus  the  Father  may  commit  the  terests  of  the  children  may  be  made. 
child    to    its    grandmother.     State    v.  128   111.  378. 

Barney,  I  i  K.  I.  62.  5  4  Ad.  &  El.  624. 

'United    Jtati     v.  Green,  3  Mason, 
382. 

390 


CHAP.  III.]  RIGHTS   OF   PARENTS.  §  248 

he  cohabited,  hastened  the  passage  of  Justice  Talfourd's  Act,1 
has  been  repeatedly  condemned  in  the  United  States.  Indeed, 
our  courts  have  required  no  such  statute  to  prevent  them  from 
taking  the  custody  of  any  child  from  one  whose  parental  in- 
fluence, by  reason  of  immoral  character  or  otherwise,  is  found 
to  be  injurious  to  the  child's  welfare;  if  a  father  wrongs  his 
wife,  it  is  readily  presumed  that  he  will  wrong  his  children 
likewise ;  and  neither  parent  is  secure  in  a  child's  custody,  if 
custody  with  either  is  palpably  against  the  child's  own  welfare.2 
The  American  rule  is  not,  however,  one  of  fixed  and  determined 
principles.  Much  must  be  left  to  the  peculiar  surroundings  of 
each  case.3  And  there  are  circumstances,  where  parental  rights 
have  been  waived  by  the  voluntary  establishment  of  new  rela- 
tions permissively,  under  which  the  court  will,  from  similar 
regard  for  the  child's  welfare,  refuse  to  disturb  a  custody  vol- 
untarily yielded,  in  favor  of  the  parent  who  has  long  acquiesced 
in  the  transfer ;  thus  regarding  the  ties  both  of  nature  and 
association.4 

Proceedings  as  to  the  custody  of  children  are  usually,  in  this 
country,  conducted  by  writ  of  habeas  corpus.  And  the  settled 
rule  with  us  is  that,  while  the  court  is  bound  to  free  the  person 
from  illegal  restraint,  it  is  not  bound  to  decide  who  is  entitled 
to  the  guardianship,  or  to  deliver  infants  to  the  custody  of  any 


1  Forsyth,  Custody,  69,  137.  Lord  N.  C.  Aud  see  85  Iowa,  49 ;  92  Cal. 
Denmnn,  who  had  sat  iu  this  case,  de-  195. 

clared  that  there  was  not  one  of  the  3  Cook  v.  Cook,  1  Barb.  Ch.  639  ; 
court  who  had  not  felt  ashamed  at  the  Dailey  v.  Dailey,  Wright,  514;  Corn- 
state  of  the  law.     See  lb.  69,  n.  momvealth  v.  Addicks,  2  S.  &  R.  174. 

2  Bedell  v.  Bedell,  1  Johns.  Ch.  604 ;  Thus  have  the  child's  interests  been 
Barrere  v.  Barrere,  4  Johns.  Ch.  187,  considered  against  the  father,  where 
197  ;  2  Bishop,  Mar.  &  Div.  5th  ed-  the  latter  sought  to  obtain  the  child 
§532;  Ex  parte  Sehumpert,  6  Rich,  from  its  maternal  grandparents.  Jones 
344;  People  v.  Chegaray,  18  Wend.  v.  Darnall,  103  Ind.  569.  Or  where 
637  ;  Garner  v.  Gordon,  41  Ind.  92 ;  the  children  were  bound  out  or  given 
C<>rrie  v.  Corrie,  42  Mich.  509.  Courts  for  adoption  by  public  authorities, 
have  refused  to  allow  a  widowed  mother,  Briaster  v.  Compton,  68  Ala.  299. 
who  remarried,  to  take  her  child  from  Especially  where  the  father  was  intem- 
the  husband's  sister  with  whom  she  had  perate  or  improvident,  or  long  regard- 
left  it  nine  years.  16  R.  I.  374;  95  Cal.  less  of  the  child's  welfare.  37  Ark.  27  ; 
461.     Or  to  deliver  the  child  to  a  non-  15  Neb.  459. 

resident  mother  under  disfavoring  cir-  4  Iloxsie   v.   Potter,    16  R.    I.   374; 

cumstances.     Harris    v.  Harris    (1894),  Marshall  v.  Reams,  32  Fla.  499. 

89 1 


§249 


THE   DOMESTIC    RELATIONS. 


[PART   III. 


particular  person ;  but  this  may  be  clone  whenever  deemed 
proper.  In  other  words,  it  is  in  the  sound  discretion  of  the 
court  to  alter  the  custody  of  the  infants,  or  not.1 

§  249.  Custody  under  Divorce  and  other  Statutes.  —  Our 
divorce  jurisprudence,  being,  until  recently,  quite  different  from 
that  of  England,  further  opportunity  has  been  furnished  for  a 
departure  from  the  common-law  rules  which  favor  the  paternal 
right  of  custody.  The  same  tribunal  which  hears  the  divorce 
cause  has  power  to  direct  with  whom  of  the  parties,  or  what 
third  person,  the  children  shall  be,  and  direct  as  to  their  sup- 
port.2 Like  powers  are  now  conferred  upon  the  English  matri- 
monial court  by  recent  statutes  ;  3  and  the  child's  custody  may 
be  given  to  either  parent  or  a  third  person ;  generally  to  the 
innocent  parent,  though  with  due  regard  to  the  child's  welfare ; 
and,  in  suitable  cases,  with  a  right  of  access  to  the  parent  or 
parents  deprived  of  custody.4     Where  the  custody  of  a  child  is 


1  Commonwealth  v.  Addicks,  5  Binn. 
520  ;  Armstrong  v.  Stone,  9  Gratt.  102  : 
Case  of  Waldron,  13  Johns.  418  ;  State 
v.  Smith,  6  Me.  462;  State  ex  rel.  v. 
Paine,  4  Humph.  523 ;  Commonwealth 
v.  Briggs,  16  Pick.  203  ;  Ward  v.  Roper, 
7  Humph.  Ill;  Foster  v.  Alston,  6 
How.  (Miss.)  406 ;  Stigall  v.  Turney,  2 
Zabr.  286 ;  Mercein  v.  People,  25  Wend. 
64  ;  State  v.  King,  1  Ga.  Dee.  93 ;  State 
r.  Banks,  25  Ind.  495  ;  Bennet  v.  Ben- 
net,  2  Beasl.  114  ;  Ex  parte  Williams, 
11  Rich.  452  ;  State  v.  Richardson,  40 
N.  H.  272;  State  v.  Grisby,  38  Ark. 
406. 

The  United  States  courts  have  no 
inherent  authority  to  determine  ques- 
tions of  the  custody  and  guardianship 
of  ;i  child  ;  but  local  State  courts  deal 
with  sinh  matters.  Whether  the  di- 
verse  citizenship  of  contesting  parties 
may  found  such  a  jurisdiction,  qu.  Bur- 
ros, R»  136  U.  s.  597. 

-  2  Bishop,  Mar.  &  Div.  5th  ed. 
§§  526,  530. 

;i  [1894]  I*.,  295. 

*  Stats.  20  &  21  Vict.  c.  85,  §35  ;  22 

&  23  Vict.  c.  61,  §  4.    See  Ahrenfeldt 
v.  Ahrenfeldt,  l   Hoff.  Ch.  497  ;  Spratt 

392 


v.  Spratt,  1  Swab.  &  T.  215  ;  2  Bishop, 
Mar.  &  Div.  5th  ed.  §§  532,  544,  and 
cases  cited  ;  Bedell  v.  Bedell,  1  Johns. 
Ch.  604  ;  Chetwynd  v.  Chetwynd,  L.  R. 
1  P.  &  D.  39  ;  Harding  v.  Harding,  22 
Md.  337  ;  Mallinson  v.  Mallinson,  L.  R. 
1  P.  &  D.  221 ;  McBride  v.  McBride, 
1  Bush,  15;  Goodrich  v.  Goodrich,  44 
Ala.  670;  Bush  v.  Bush,  37  Ind.  164; 
Harvey  v.  Lane,  66  Me.  536;  Hill  v. 
Hill,  49  Md.  450.  The  father  is  strongly 
preferred  to  the  mother  where  he  ob- 
tained divorce  for  her  desertion.  Carr 
v.  Carr,  22  Gratt.  168.  See  In  re  Tay- 
lor, 4  Ch.  D.  157.  Even  after  divorce 
with  a  decree  of  custody  to  one  parent, 
occasion  may  arise  for  separating  the 
child,  in  the  latter's  interest,  from  liotli 
parents  as  concerns  custody.  D'Alton 
v.  D'Alton,  4  P.  1).  87  ;  hi  re  Bort,  25 
Kan.  306.  Where  the  divorce  court 
awarded  custody  to  the  mother,  and 
the  mother  on  dying  left  the  children 
to  some  relative  who  was  appointed 
their  guardian,  the  father  must,  at  least 
show  his  fitness  to  take  custody.  Bryan 
v.  Lyon,  104  Md.  227;  Murphy,  Ex 
parte,  75  Ala.  409  ;  Smith  v.  Bragg,  68 
Ga.  650      But  as  against  a  stranger  in 


CHAP.  III.] 


RIGHTS   OF   PARENTS. 


§249 


the  subject  of  chancery  or  divorce  proceedings,  the  court  will 
often  be  justified  in  making  temporary  arrangements  for  his 
custody.1  And  where  there  has  been  no  order  of  custody  but  a 
separation,  the  husband  and  father  cannot  in  our  later  cases  rely 
strongly  upon  his  paramount  right  against  the  wife  and  mother, 
unless  he  is  free  from  blame.2  In  short,  the  welfare  of  the  child 
becomes  in  modern  practice  the  paramount  consideration,  nor  are 
parental  rights  considered  without  due  regard  for  parental  duties. 


blood,  see  90  Ind.  150.  Even  though  a 
divorce  be  obtained  for  the  wife's  biga- 
mous adultery,  the  court's  discretion  in 
custody  is  not  concluded  in  the  husband's 
favor.     152  Mass.  16  ;  12  Col.  421. 

1  Hutsou  v.  Townsend,  6  Rich.  Eq. 
249  ;  Barnes  v.  Barnes,  L.  R.  I  P.  &  D. 
463  ;  Re  Welch,  74  N.  Y.  299. 

Some  American  statutes  concerning 
custody  are  worthy  of  notice.  Follow- 
ing the  temper  of  the  times,  the  New 
York  legislature  of  1860  enacted  that 
"  every  married  woman  is  hereby  con- 
stituted and  declared  to  be  the  joint 
guardian  of  her  children,  with  her  hus- 
band, with  equal  powers,  rights,  and 
duties  in  regard  to  them  with  her  hus- 
band." Sucb  a  statute,  unexplained, 
might  seem  to  do  away  altogether  with 
the  paramount  claims  of  the  husband. 
But  the  courts  appeared  disposed  to 
regard  the  innovation  with  little  favor ; 
and  the  law  was  in  1862  repealed. 
People  v.  Brooks,  35  Barb.  85  ;  People 
v.  Boice,  39  Barb.  307.  But  cf.  ori- 
ginal Constitution  of  Kansas ;  also  New 
York  Act,  1893,  c.  175,  declaring  every 
married  woman  "joint  guardian"  with 
her  husband.  42  Kan.  216.  In  the 
former  case  a  married  woman,  who 
lived  apart  from  her  husband,  no  mis- 
conduct on  his  part  being  shown, 
sought  under  the  new  statute  to  obtain 
custody  of  the  children.  An  earlier 
statute  of  New  York  provides  that  if 
the  parents  live  in  a  state  of  separation, 
without  being  divorced,  and  without  the 
fault  of  the  wife,  the  courts  may,  on  her 
application,  award  the  custody  of  the 
child  to  the  mother.  2  N.  Y.  Rev.  Sts. 
148;  2  Kent,  Com.  205  n.;    People  v. 


Mercein,  3  Hill,  399.  The  discretion 
thus  conferred  upon  the  courts  is  a 
judicial  one,  however,  and  is  to  be  ex- 
ercised with  due  reference  to  the  cause 
of  separation,  and  the  conduct  and  char- 
acter of  the  parties.  Aud  see  People  v. 
Brooks,  supra.  See  N.  Y.  Act  1802, 
c.  172,  §  6,  which  restrains  the  father 
from  binding  his  child  as  apprentice, 
or  parting  with  his  control,  or  creating 
a  testamentary  guardian  without  the 
mother's  written  assent.  Legislative 
provisions  of  a  like  tendency  are  fre- 
quently to  be  met  with  in  other  States. 
Thus  in  Massachusetts  it  is  enacted 
that,  pending  divorce  controversies,  the 
respective  rights  of  the  parents  shall,  in 
the  absence  of  misconduct,  be  regarded 
as  equal,  and  that  the  happiness  and 
welfare  of  the  children  shall  determine 
the  custody  in  which  they  shall  be 
placed.  Mass.  Gen.  Sts.  c.  107,  §  37. 
And  under  a  still  more  recent  statute 
in  New  Jersey,  the  court  is  to  a  certain 
extent  deprived  of  its  discretion  in  dis- 
posing of  the  custody  of  children  whose 
parents  are  separated,  but  not  divorced  ; 
for  by  this  statute  the  custody  of  the 
children  under  seven  years  of  age  is 
transferred  from  the  father  to  the 
mother.  Bennet  v.  Bennet,  2  Beasl. 
114.  As  to  modifying  the  order  of 
custody  after  divorce,  see  Harvey  v. 
Lane,  66  Me.  536. 

2  92  Ala.  78 ;  30  Neb.  624.  Where 
a  divorce  court  has  jurisdiction  of  the 
parties,  a  common-law  court  disinclines 
to  entertain  a  question  of  custody  upon 
hull  us  corpus.  1 1 7  Mo.  249.  See  Hard- 
ing v.  Harding.  144  111.  5S9  ;  Schroeder 
v.  Filbert  (1894),  Neb. 

393 


§  251  THE   DOMESTIC   RELATIONS.  [PART   III. 

§  250.  Custody  of  Minors  ;  Child's  own  Wishes.  —  It  is  some- 
times a  question,  in  proceedings  relative  to  the  custody  of  minors, 
how  far  the  child's  own  wishes  should  be  consulted.  Where 
the  object  is  simply  that  of  custody,  the  rule,  though  not  arbi- 
trary, rests  manifestly  upon  a  principle  elsewhere  often  applied ; 
namely,  that  after  a  child  has  attained  to  years  of  discretion  he 
may  have,  in  case  of  controversy,  a  voice  in  the  selection  of  his 
own  custodian.  The  practice  is  to  give  the  child  the  right  to 
elect  where  he  will  go,  if  he  be  of  proper  age,  and  the  issue  is  a 
doubtful  one.  If  he  be  not  of  that  age,  and  want  of  discretion 
would  only  expose  him  to  dangers,  the  court  must  make  an 
order  for  placing  him  in  custody  of  the  suitable  person  ; x  nor 
will  the  choice  of  the  child  in  any  case  control  the  court's 
discretion.2 

§  251.  Contracts  transferring  Parental  Rights.  —  It  is  held  in 
England  that  an  agreement  by  which  the  father  surrenders  cus- 
tody of  his  child  is  not  binding;  and  that  he  is  at  liberty  to  re- 
voke his  consent  afterwards,  and  obtain  the  child  by  a  writ  of 
habeas  corpus?  The  policy  of  the  rule  is  otherwise  in  some 
American  States.  Thus,  there  is  a  Massachusetts  case  where 
a  child  had  been  given  up  at  its  birth,  the  mother  having  then 
died,  to  its  grandparents,  who  kept  it  for  thirteen  years,  at  their 
own  expense,  without  any  demand  made  by  the  father  for  its 
restoration ;  and  under  these  circumstances  the  court  refused 
afterwards  to  change  the  custody.4     But  a  father's  phrase  in  a 


1  Forsyth,  Custody,  93,  &c. ;  Rex  v.  R.  1  P.  &  D.  221,  sixteen  years  is  now 

Greenhill,  4  Ad.  &  HI.  62.     Nine  or  ten  the   limit   adopted    in    English    courts 

years   of  age  has  been  considered  too  within  which  the  child's  own  choice  as 

young;    yel    mental    capacity  appears  to  custody  may  be  regarded.     See,  as 

tli.'  real   test;  ami   the  wishes  of  chil-  to  children  too  young,  Rust  v.  Vanvac- 

dren   less  than  Fourteen  have  been  re-  ter,  9  W.  Va.  600;  Henson  v.  Walts, 

garded.     See    Anon.,    2   Ves.   274;  Ex  40  Ind.  170. 

parte   Hopkins,  2   P.  Wins.  152;  Curtis  2  Marshall  v.  Reams,  32  Fla.  499; 

v.  Curtis,  5  Cr-.iy,  535;  People  w.  Mer-  People  v.  Watts,  122  N.  Y.  238. 

"in     8    Paige,   47;    95    Cal.    461  ;    In  «  Regina  v.  Smith,  16  E.  L.   &  Eq. 

n  Goodenough,   19  Wis.  274;  Regina  221. 

'■     Clarke,   7    El.   ft    B.    186;    State    v.  4  Pool  v.  Gott,  14  Law  Reporter.  269, 

Richardson,    10   X.   II.  272;  Spears  v.  before  Shaw,  C.  J.    And  see  In  re  Good- 

Sm  II.  7  1  V  ('..  210;  32  Fla.  499.     But  enough,  19  Wis.  274;  Pently  v.  Terry, 

0    Regina  >•■  Howes.  3  Ell.  ft  59  Ga.  555. 
i.ll.  832,  and  Mallinson  v.  Mallinson,  L. 

894 


CHAP.  III.] 


RIGHTS    OF   PARENTS. 


§251 


letter  of  affection  to  relatives  is  not  to  be  readily  construed  into 
a  barrier  of  his  natural  rights ; 2  nor  is  his  permissive  cus- 
tody to  others,  in  the  absence  of  more  unfavorable  circumstances 
against  him,  to  be  deemed  irrevocable  on  his  part.2  The  gen- 
eral doctrine  appears  to  us,  on  the  whole,  to  be  this :  that 
public  policy  is  against  the  permanent  transfer  of  the  natural 
rights  of  a  parent ;  and  that  such  contracts  are  not  to  be  spe- 
cifically enforced,  unless  in  the  admitted  exception  of  master 
and  apprentice,  to  constitute  which  relation  requires,  both  in 
England  and  America,  certain  formalities ;  and  excepting,  too, 
in  parts  of  the  United  States  where  the  principles  of  legal  adop- 
tion are  part  of  the  public  policy.3  American  courts  hold  fast, 
nevertheless,  to  the  true  interests  and  welfare  of  the  child.  And 
hence  the  contract  of  a  parent  unfit  to  have  custody  of  the  child, 
and  more  especially  of  a  shiftless  widowed  mother,  which  sur- 
renders that  child  by  formal  instrument,  fair  in  its  terms,  to  a 
benevolent  institution,  for  the  purpose  of  having  the  child 
brought  up  in  a  good  family,  or  to  some  other  suitable  third 
party,  has  been  so  far  upheld,  where  the  institution  or  person 
intrusted  has  not  failed  in  duty,  that  the  child  is  suffered  to 
remain  where  he  was  placed,  for  the  reason  that  his  welfare 
requires  it,  rather  than  be  returned  to  the  parent  who  seeks  to 
recover  custody  once  more.4     And  so,  too,  often,  where  a  shift- 


1  Scarritt,  Re,  76  Mo.  565. 

2  Weir  v.  Marley,  99  Mo.  484;  152 
Mass.  432.  But  a  fair  contract  of  trans- 
fer on  a  good  and  executed  consideration, 
ought  not  to  be  set  aside  and  custody  re- 
stored unless  the  parent  can  show  that  a 
change  will  promote  the  child's  welfare. 
Cunningham  v.  Barnes,  37  W.  Va.  476. 

3  See,  as  to  adoption,  supra,  §  232 ; 
Legate  v.  Legate  (1894),  Tex. 

4  2  Kent,  Com.  205  ;  State  v.  Bar- 
rett, 45  N.  II.  15  ;  Dumain  v.  Gwynne, 
10  Allen,  270;  Commonwealth  v.  St. 
John's  Asylum,  9  Phila.  571  ;  Bonnett 
v.  Bonnett,  61  Iowa,  198.  Where  sis- 
ters of  charity  took  a  female  child 
without  legally  adopting,  the  child  was 
transferred  afterwards  in  order  to  re- 
ceive the  benefit  of  a  grandparent's 
will.     Bullen,  Ex  parte,  28  Kan.  781. 


The  mother,  being  a  suitable  per 
son,  was  allowed  to  recover  custody,  in 
Wishard  v.  Medaris,  34  Iud.  168.  And 
see  Beller  v.  Jones,  22  Ark.  92.  Mayne 
v.  Baldwin,  1  Halst.  Ch.  454 ;  People  v. 
Mercein,  8  Paige,  Ch.  67 ;  s.  c.  3  Hill, 
408;  State  v.  Libbey,  44  N.  H.  321  ; 
State  v.  Scott,  30  N.  H.  274,  establish 
that  a  parol  transfer  of  custody  is  in- 
sufficient. But  this  is  rather  as  regards 
the  parent  than  third  parties,  or  the 
heirs  or  kindred  of  the  parent.  Assent 
and  transfer  was,  after  long  lapse  of 
time,  presumed  in  Sword  v.  Keith,  31 
Mich.  248.  That  a  grandparent,  by 
virtue  of  transfer  to  him,  may  sue  a 
third  person  for  disturbing  his  custody, 
see  Clark  v.  Bayer,  32  Ohio  St.  299. 


395 


§  252  THE   DOMESTIC    RELATIONS.  [PART   III. 

less  parent  permits  the  child  to  be  brought  up  by  other  relatives 
at  their  cost,  aud  a  change  afterwards  would  be  unsuitable.1 

Nor  can  the  father,  under  the  common-law  rule,  divest  him- 
self, even  by  contract  with  the  mother,  of  the  custody  of  his 
children,  though  he  allows  them  to  remain  with  her  for  several 
years.2  Yet  the  rule  in  some  States  is  more  flexible.3  A  par- 
ent, if  personally  suitable,  is  not  debarred  from  recovering  cus- 
tody of  a  young  child  who,  without  parental  consent,  has  been 
bound  out  in  some  emergency  by  the  public  authorities.4  And 
the  right  of  the  child's  custodian  under  some  parental  contract 
is  always  strongest  and  most  positive  as  against  third  parties.5 

§  252.  Right  of  Parent  to  Child's  Labor  and  Services.  —  Next 
to  the  right  of  custody  of  infants  comes  that  of  the  value  of 
their  labor  and  services.  The  father,  says  Blackstone,  has  the 
benefit  of  his  children's  labor  while  they  live  with  him  and  are 
maintained  by  him  ;  and  this  is  no  more  than  he  is  entitled  to 
from  his  apprentices  or  servants.6  This  right,  like  that  of  cus- 
tody, rests  upon  the  parental  duty  of  maintenance,  and  furnishes 
some  compensation  to  the  father  for  his  own  services  rendered 
the  child. 

Whether  this  right  remains  absolute  in  the  father  until  the 
child  has  attained  full  age  is  apparently  a  matter  of  doubt.  It 
is  certainly  perfect  while  the  period  of  the  child's  nurture  con- 
tinues. But  if  this  is  all,  it  can  be  of  little  consequence,  be- 
cause the  child's  labor  and  services  are  for  that  period  of  little 
or  no  value  ;  nor  could  compensation  be  thus  afforded  for  the 

1  Drumb  v.  Keen,  47  Iowa,  435.  "Wend.    04.      The   child's   welfare   and 

If  a  father,  after  making  an  assign-  wishes  are  considered  as  before  stated. 

me ii t    of  the   services  or  society  of  his  -  Torrington  v.   Norwich,   21   Conn. 

minor  child,   has  retaken  the  child  into  543;  People   v.   Mercein,  3   Hill,   408. 

his  own   keeping,  tin;   assignee's  only  And  see  Vansittart  v.  Vansittart,  4 Kay 

remedy  on   his  own    behalf  (if  any  he  &J.62;  .Johnson  v.  Terry,  34  Conn.  259. 

have)    is   by  action   <>n    the   contract.  :i  Wodell  v.  Coggeshall,  2  Met.  89. 

Farnswortb  v.  Richardson,  85  Me.  267.  And  see  State  v.  Smith,  6  Me.  402. 

And  Bee  Commonwealth  v.  M'Keagy,  1  As  to  custody  in  matters  of  guardian- 

Ashm.  248;  Lowry  v.  Button,  Wright,  ship,  see  infra,  I'art  IV. 

330      \n  adjudication  of  the  appropri-  *  Goodchild  v.  Foster,  51  Mich. 599; 

ibnnal  on  the  question  of  the  cus-  Farnham  v.  Tierce,  141  Mass.  203.    See 

tody  "f  .Mi  infant  child,  brought  up  on  Briaster  v.  Compton,  68  Ala.  299. 

mis,   may   lie  pleaded  as  res  6  27  Fla.  238. 

adjudicata.      Mercein    v.     People,    25  °  1  Bl.  Com.  453;  2  Kent, Com.  193. 
...» 


CHAP.  III.]  RIGHTS    OF   PARENTS.  §  252 

many  years  when  the  child  was  entirely  helpless.  All  will 
admit  that  the  father's  right  continues  until  the  child  reaches 
fourteen.  And  since  the  father's  guardianship  by  nature  ex- 
tends through  the  full  term  of  the  child's  minority  ;  since,  too, 
he  may  by  will  place  a  testamentary  guardian  of  his  own  choice 
over  the  infant ;  since  it  is  reasonable  that  the  law  should  set 
off  years  of  later  usefulness  against  years  of  earlier  helplessness  ; 
in  short,  since  the  age  of  majority  is  fixed  as  the  period  when 
an  infant  becomes  legally  emancipated  from  his  father's  control,  — 
we  may  fairly  assume  that,  all  other  things  being  equal,  the 
father  is  actually  entitled  to  the  value  of  his  child's  labor  and 
services  until  the  latter  becomes  of  age.  This  is  the  principle 
assumed  by  the  elementary  writers,1  and  in  most  of  the  judicial 
decisions  ; 2  though  to  such  opinion  Chancellor  Kent  appears  to 
yield  a  somewhat  doubtful  assent.3 

The  right  of  action  to  recover  for  the  services  of  a  minor  is 
then  presumed  to  be  in  his  father.4  And  the  father  may  charge 
services  rendered  by  his  son,  as  a  master  for  his  apprentice  or 
hired  laborer,  and  consider  it  his  own  work.6  The  right  to  sue 
for  services  quantum  meruit  is  likewise  prima  facie  in  the  father.6 
We  assume  that  the  child  lives  at  home  or  is  supported  by  the 
parent.  And  if  a  child,  being  of  full  age,  chooses  to  remain  with 
the  father,  or  is  imbecile  and  needs  to  be  harbored  at  home,  the 
relation  may  continue  so  as  to  entitle  the  parent,  either  as  such 
or  on  the  principle  of  master  and  servant,  to  recover  for  the 
child's  wages  in  the  same  manner.7 

Where  a  minor  child  is  hired  under  agreementwith  the  father, 
the  hirer  cannot  discharge  the  child  without  notice  to  the  parent 
and  thereupon  proceed  to  make  a  new  contract  of  hire  with  the 

1  1  Bl.  Com.  453  ;  Reeve,  T)om.  Eel.  v.  Swedenborg,  49  Ind.  378  ;  Mona- 
290.  ghan  v.   School  District,  38  Wis.   100. 

2  Day  v.  Everett,  7  Mass.  145;  Ben-  See  Campbell  v.  Cooper,  34  N.  H.  49. 
son  v.  Bemington,  2  Mass.  113;  Plum-  5  Brown  v.  Ramsay,  5  Dutch.   117. 
mer  v.  Webb,  4  Mason,  380;  Gale  ».  But  see  Jones  v.  Buckley,  19  Ala.  604. 
Parrot,   1    N.    H.   28 ;    Nightingale    v.  6  Letts  v.  Brooks,  Hill  &  Den.  36  ; 
Withington,  15  Mass.  272;  The  Etna,  Van  Dorn  v.  Young,  13  Barb.  286. 
Ware,  462.  i  Brown  v.  Ramsay,  5  Dutch.  117; 

8  2  Kent,  Com.  193.  Overseers  of   Alexandria  v.  Overseers 

4  Dufield  v.  Cross,  12  HI.  397;  Shute  of  Bethlehem,  1  Harr.  122;  infra,  c.  5. 
v.  Dorr,  5  Wend.  204 ;    Hollingsworth 

397 


§  252  a 


THE    DOMESTIC    RELATIONS.  [PART    III. 


child,  independently.  The  effect  of  such  a  new  arrangement,  if 
made  without  the  knowledge  and  assent  of  the  father,  is  that  the 
latter,  on  learning  of  it,  may  either  adopt  the  contract  and  claim 
what  was  due  under  it,  or  repudiate  and  claim  the  value  of  his 
child's  services.1  If  a  minor  child,  without  his  father's  consent, 
enters  into  a  contract  of  hire  with  a  third  party,  the  father  may 
promptly  and  peremptorily  command  the  child  to  quit  the 
service.2  So  if  the  permitted  service  is  illegally  pursued,  the 
father  may  terminate  it.3 

§  252  a.  The  Same  Subject.  —  But  the  duties  and  rights  of 
parents  are  limited,  mutually  dependent,  and  in  a  great  degree 
correspondent  with  one  another.  When  the  father  has  dis- 
charged himself  of  the  obligation  to  support  the  child,  or  has 
obliged  the  child  to  support  himself,  and  especially  wherever  he 
has  been  remiss  in  his  own  parental  duties,  our  courts  are  reluc- 
tant to  admit  his  right  to  the  child's  services.  Under  such  cir- 
cumstances, says  a  New  Hampshire  court,  "  there  is  no  principle 
but  that  of  slavery  which  continues  his  right  to  receive  the 
earnings  of  his  child's  labor."  4  Of  the  emancipation  of  chil- 
dren, thus  or  otherwise  secured,  we  shall  speak  hereafter.5 

The  parent  ma}'  voluntarily  relinquish  the  right  to  his  child's 
earnings,  and  may  permit  the  child  to  earn  for  himself,  receive 
his  earnings,  and  appropriate  them  at  pleasure.  He  is  not 
obliged  to  claim  such  earnings  for  the  benefit  of  his  own  credi- 
tors.6    And  if  the  parent  authorize  a  third  person  to  employ 


1  Sherlock  v.  Kiramel,  75  Mo.  77. 

2  State  v.  Anderson,  104  N.  C.  771. 
Statutes  forbidding  the  enticement  of  a 
servant  from  the  master,  &c,  have  no 
application  here.     lb. 

'■'  As  m  Hunt  v.  Adams,  81  Me.  356, 
where  the  employer  persisted  in  keep- 
ing the  child  at  work  on  Sunday  in 
violation  of  law. 

1  Woods,  •].,  in  Jenness  v.  Emerson, 
15  N.  H.  489.  But  in  this  case  the 
principle  seems  to  be  assumed  that  tin: 
parenl  al  ion  to  support  and  his 

i  ceive  wages  commence  to- 

i     continue   together,  and  ought 

terminate  together. 
See  infra,  §§  207,  208.     An  infant 

398 


daughter's  marriage  terminates  her 
father's  right  to  her  services.  lb.  And 
an  infant  son  who  marries  must  use  his 
earnings  to  support  his  wife.  Common- 
wealth v.  Graham,  157  Mass.  73.  If  a 
minor  son  be  lawfully  committed  for  a 
crime,  the  parental  loss  of  earnings  (offset 
in  some  degree  by  an  exemption  from 
Bupport) is  without  remedy.  79  Hun, 580. 
6  Even  if  the  father  is  insolvent,  he 
may  thus  relinquish,  provided  this  be 
done  in  good  faith.  Wilson  v.  McMil- 
lan, 02  Ga.  16;  Atwood  u.  Holcomb,  39 
Conn.  270;  Wambold  v.  Vick,  50  Wis. 
456;  17  Neb.  835.  But  the  executory 
promise  to  relinquish  is  revocable. 
Stovall  u.  Johnson,  17  Ala.  14. 


CHAP.  III.]  IUGHTS    OF    PARENTS.  §  252  a 

and  pay  the  child,  or  even,  as  it  is  held,  where  he  knows  that 
the  infant  contracted  on  his  own  account  and  does  not  object, 
payment  to  the  child  and  not  to  the  parent  will  be  a  sufficient 
discharge.  Such  an  agreement  may  be  in  express  terms,  or  it 
may  be  implied  from  circumstances.1  An  American  court 
favorably  regards  contracts  ol  this  nature,  for  the  child's  bene- 
fit, as  they  are  in  conformity  with  the  spirit  of  free  institu- 
tions.2 And  a  New  York  statute  provides  that  unless  the 
parent  notifies  the  minor's  employer,  within  thirty  days  after 
the  commencement  of  service,  that  he  claims  the  wages,  pay- 
ment to  the  minor  will  be  good.3  When  the  parent  is  a  pauper 
and  is  maintained  by  a  town,  such  town  is  held  not  entitled 
to  the  earnings  of  a  minor  child  who  is  not  himself  a  pauper.4 
The  father  may  by  his  own  delay  and  laches  forfeit  the  right  of 
action  for  his  son's  wages ;  as  where  the  minor  agrees  to  work 
at  certain  monthly  wages  to  be  paid  to  himself,  and  the  father, 
knowing  of  the  agreement,  gives  no  notice  of  his  objection,  but 
waits  until  the  work  has  been  done  and  payment  is  made  to  the 
child,  before  making  a  demand.5  But  if  the  father  has  given 
seasonable  notice  of  his  dissent  and  demand  to  the  stranger 
hiring  his  son,  the  fact  that  the  son  continues  to  work  against 
his  express  dissent,  and  that  the  stranger  notified  him  to  come 
and  take  his  son  away  and  he  neglected  to  do  so,  will  not  pre- 
clude him  from  recovering  the  wages.6  Nor  does  the  fact  that 
the  son  has  agreed  with  his  father  to  buy  out  his  time  for  the 
remainder  of  his  minority  by  paying  a  certain  sum  therefor, 
which  has  not  been  paid,  prevent  the  father  from  recovering 
his  wages  pending  the  payment  of  such  sum.7 

1  See  Campbell  v.  Cooper,  34  N.  H.  3  N.  Y.  Laws,  1850,  p.  579  ;  Herrick 
49;  Jenness  v.  Emerson,  15  N.  H.  489  ;  v.   Fritcher,   47    Barb.    5S9.     And   see 
Cloud  v.    Hamilton,   11    Humph.    104;  Everett  v.  Sherfey,  1  Iowa,  356. 
Armstrong  v.  McDonald,  10  Barb.  300;  4  Jenness  v.  Emerson,  15  N.  H.  486. 
Atkins  v.  Sherbino,  58  Vt.  248.  5  Smith  v.  Smith,  30  Conn.  111. 

2  Snediker  v.  Everingham,  3  Hutch.  6  lb. 

143;    Cloud  v.   Hamilton,    11    Humph.  7  Cahill  v.  Patterson,   30   Vt.    592. 

104.     An  infant  may  sue  for  breach  of  And    see    Kauffelt    v.    Moderwell,    21 

contract  for  employment,  even  though  Penn.   St.  222;  Cloud  v.    Hamilton,  11 

the  father  might  also  sue;  relinquish-  Humph.  104;   Whiting  v.  Earle, 3  Pick 

ment  of  the  latter's  right  being  implied  201. 
from  circumstances.     Benziger  v.  Mil- 
ler, 50  Ala.  206.     See  post,  c.  5. 

399 


§  252  a  THE   DOMESTIC   RELATIONS.  [PART   III. 

We  may  add  that,  whatever  private  arrangement  may  exist 
between  the  father  and  his  son,  unless  it  is  brought  to  the 
employer's  notice,  it  cannot  be  set  up  to  justify  payment  to  the 
minor  himself.  As,  for  instance,  where  father  and  son  had 
secretly  agreed  that  the  latter  should  have  his  own  wages.1 
And  the  publication,  by  a  parent,  of  a  notice  of  his  son's 
emancipation,  more  liberal  to  the  latter  than  the  actual  agree- 
ment between  them,  will  not,  as  against  one  who  has  no 
knowledge  of  the  publication,  estop  the  father  from  insisting 
on  such  right  to  his  son's  wages  as  the  contract  between  them 
actually  gives.2  But  the  usage  of  father  and  son  may  be 
alleged.3 

One  who  employs  the  minor  son  of  another  cannot  be  liable 
to  the  father  as  for  breach  of  contract,  because  of  such  minor's 
delinquencies.  Hence  it  is  held,  that  where  the  father  con- 
tracts that  his  minor  son  shall  work  for  a  specified  time  and 
price,  and  the  son  leaves  his  employer  before  the  expiration  of 
the  time,  though  against  his  father's  will,  the  father  can  only 
recover  for  the  time  of  actual  employment,  although  the  em- 
ployer assented  to  the  departure  ; 4  and  the  child's  breach  of 
specified  conditions  of  notice  before  quitting  bars  the  father's 
recovery  of  wages  accordingly.6  But  where  the  minor  is  hired 
to  serve  for  a  specified  time,  the  employer  who  contracted  with 
the  parent  should  notify  the  latter  of  any  failure  of  duty  on 
the  child's  part  before  discharging  the  child,  nor  should  he  dis- 
charge without  notice  to  the  parent.6  If  a  father  place  his 
minor  son  to  work  for  another,  for  no  illegal  purpose,  and 
without  knowledge  and  assent  as  to  his  illegal  employment  in 
fact,  he  is  still  entitled  to  compensation  for  his  son's  services  ; 
as  where  a  son  is  employed  by  another  in  unlawfully  selling 

1  Kauffelt  v.  Moderwell,  21  Penn.  thau  his  services  were  worth.  But  cf. 
St.  222.  The  Lucy  Anne,  3  Ware,  253. 

2  Mason  v.  Hutchins,  32  Vt.  780.  5  Tennessee  Man.  Co.   v.  James,  91 
8  Perlinau  v.   Phelps,  25    Vt.    478;     Tenn.  154. 

Canovar  v.  Cooper,  3  Barb.  115.  °  Day  v.  Oglesby,  53  Ga.  646.  Sem- 
1  Bennessy  v.  Stewart,  .31  Vt.  486.  i/e,  a  child  maybe  discharged  for  suit- 
See  Bcboenberg  V.  Voight,  36  Midi,  aide  reason  without  giving  notice  to 
310,  where,  the  employment  being  the  parent.  Sherlock  v.  Kimmel,  75 
quantum  meruit,  the  employer  could  Mo.  77. 
Hhow  that  the  son  had  embezzled  more 

400 


2HAP.  III.]  RIGHTS   OF   PARENTS.  §  253 

intoxicating  liquors,  the  father  being  ignorant  of  the  nature 
and  character  of  the  services  while  they  were  being  performed.1 
Where  a  father  and  his  minor  son  agree  that  the  latter  shall 
work  for  B.  until  his  majority,  and  be  paid  the  wages,  this 
does  not  debar  the  father  from  suing  B.  for  a  breach  of  the 
agreement  and  recovering  the  expense  of  finding  other  em- 
ployment for  the  son.2 

Wages  due  a  minor  seaman  belong  to  his  father,  and  the 
latter  may  sue  for  them  in  admiralty.3  And  payment  of  such 
wages  to  the  son,  while  he  was  known  by  his  employer  to  have 
been  less  than  twenty-one  at  the  time  of  making  the  contract, 
furnishes  no  defence  to  an  action  by  the  father,  who  had  no 
knowledge  of  his  hiring  until  after  the  wages  were  earned.4 
Nor  is  the  father,  in  such  case,  affected  by  the  terms  of  the 
shipping  articles,  because  it  is  an  express  contract  which,  as 
against  him,  the  son  has  no  right  to  make ;  he  can  claim  under 
a  quantum  meruit  for  the  value  of  the  services.  But  mercantile 
custom  may  determine  certain  questions  as  to  the  remedy.6 
As  to  enlistments  in  the  army  or  navy  of  the  United  States, 
the  laws  contemplate  that  the  contract  is  personal  and  for  the 
benefit  of  the  infant ;  and  pay,  bounties,  and  prize-money  in 
general,  though  earned  under  State  laws,  are  held  to  belong  to 
the  son,  and  not  to  the  father.6 

§  253.  Clothing,  Money,  &c,  given  to  the  Child  ;  Right  to 
Insure.  —  Where  a  father  furnishes  his  minor  child  with  cloth- 
ing, such  clothing  is  the  property  of  the  father,  and  he  may 
maintain  an  action  for  the  loss  and  injury  thereof;  but  where 
he  intrusts  the  child  with  a  sum  of  money  for  general  purposes, 
without  specific  directions  to  its  appropriation,  and  the  child 
buys  clothing  with  it,  such  clothing  is  not  the  property  of  the 

1  Emery  v.  Kempton,  2  Gray,  257.  4  White  v.  Henry,  24  Me.  531.     See 

2  Dickinson  v.  Talmage,  138  Mass.     Weeks  v.  Holmes,  12  Cash.  215. 

249.     As  to  the  effect  of  mere  notice  5  Bishop  v.  Shepherd,  23  Pick.  492. 

by  the  father  to  the  employer,  that  he  6  United    States    v.    Baiubridge,    1 

shall  exact  payment,  see  132  Mass.  304.  Mason,  84;  Baker  v.  Baker,  41  Vt.  55; 

3  Gifford  v.  Kollock,  3  Ware,  45.  Banks  v.  Conant,  14  Allen,  497 ;  Mears 
As  to  the  effect  of  desertion  by  the  v.  Bickford,  55  Me.  528 ;  Carson  v. 
child  after  attaining  majority,  see  Watts,  3  Doug.  350 ;  Cadwell  v.  Sher- 
Coffin  v.  Shaw,  3  Ware,  82.  man,  145111  348  ;  Magee  v.  Magee,  65  111. 

255.     But  cf .  Ginn  v.  Ginn,  38  Ind.  526 
29  401 


§254 


THE    DOMESTIC    RELATIONS. 


[PART   III. 


father.1  The  parent  may  give  articles  by  parol  to  his  child, 
and  afterwards  resume  them,  there  being  no  consideration.2  If 
a  young  child  makes  foolish  and  unnecessary  outlay,  the  parent 
may  repudiate  the  transaction ;  but  he  should  do  so  at  once,  and 
make  restitution,  rather  than  benefit  by  the  transaction.3 

A  father  has  a  pecuniary  interest  in  the  life  of  a  minor  child, 
and  an  insurance  of  the  life  of  such  child  is  not  within  the 
rule  of  law  by  which  wager  policies  are  declared  void.4  On  the 
other  hand,  a  minor  child  has  an  interest  in  an  insurance  policy 
on  the  father's  life  which  has  been  taken  out  for  his  benefit, 
and  of  this  interest  he  cannot  be  deprived  by  arbitrary  acts  in 
favor  of  another.5 

§  254.  Mother's  Rights  to  Child's  Services  and  Earnings.  — 
At  the  common  law  a  mother  has  no  implied  right  to  the  ser- 
vices and  earnings  of  her  minor  child ;  not  being  bound  as  a 
father  would  be  for  the  child's  maintenance.  Nor  have  her 
rights  or  liabilities  in  these  respects  been  usually  regarded  as 
equivalent  to  those  of  a  father,  even  where  she  is  the  only  sur- 
viving parent.6  But  the  modern  tendency  in  this  country,  if 
not  in  England,  is  certainly  to  treat  a  mother's  rights  with  con- 
siderable favor,  especially  if  she  be  a  widow ;  and  in  several 
late  cases  her  title  has  been  upheld  in  her  minor  child's  clothing  7 


1  Dickinson  v.  Winchester,  4  Cush. 
114;  Parmelee  v.  Smith,  21  111.  620; 
Prentice  v.  Decker,  49  Barb.  21. 

2  Cranz  v.  Kroger,  22  111.  74;  Sto- 
vall  v.  Johnson,  17  Ala.  14. 

6  See    Sequin    v.   Peterson,   45    Vt. 
^.'-."),  inn!  cases  cited.     Here  the  child, 
eleven  years  old,  having  bought  cigar- 
■■-.  pipes,  &c,  of  a  shopkeeper,  the 
father  was  allowed  to  recover  the  money 
in   his  own    Dame,  upon   promptly   re- 
pudiating  the  contract  and   making  his 
demand.     .Money  intrusted  to  a  minor 
bod  for  a  specific  purpose,  and  applied 
by  him  without  his  father's  assent  in 
compounding  his  own  crime,  may  he  re- 
d  bj  the  lather  from  the  receiver 
upon  a  similar  principle.     Burnham  v. 
Holt,  it  N'.  II.. 307.    Aliter,  if  the  father 
ed  to  the  payment,  or  if  the  money 
dely  as  civil  damages  in  set- 
tlement of  a  t  respass.     Tb.     In  I london 

402 


v.  Hughes,  92  Mich.  367,  the  father  was 
not  allowed  to  repudiate,  even  with  res- 
titution, where  he  used  a  colt  for  some 
months  which  the  son  purchased  out  of 
his  own  earnings.     See  also  §  241. 

4  Mitchell  v.  Union,  &c.  Ins.  Co., 
45  Me.  104.  But  see  Worthington  v. 
Curtis,  1  Ch.  1).  419. 

5  Kicker  v.  Charter  Oak  Ins.  Co  ,  27 
Minn.  19.3;  Martin  v  Aetna  Ins.  Co., 
73  Me.  25  (an  adopted  child). 

0  1  Bl.  Com.  4.'>3  ;  Commonwealth 
t.  Murray,  4  Biuu.  487  ;  Riley  v.  .lame- 
sun,  3  N.  11.29;  People  v.  Mercein,  3 
Hill,  400;  Morris  v.  Low,  4  Stew.  & 
Port.  123;  Pray  v.  Gorham,  81  Me. 
240;  McMahon  v.  Sankey,  133  111.636; 
Snediker  v.  Everingham,  3  Dutch.  143. 
See  Clapp  v.  Greene,  10  Met.  439; 
Campbell  v.  Campbell,  3  Stockt.  268. 

7  Burke  v.  Louisville  K.,  7  Ileisk. 
451. 


CHAP.  III.]  RIGHTS   OF   PARENTS.  §  255 

or  earnings,1  or  the  control  of  his  service  so  far  as  concerns 
third  persons  ;  it  appearing  that  she  was  the  surviving  parent, 
and  that  the  child  had  no  probate  guardian  and  was  not  emanci- 
pated; and  especially  where  she  had  borne  the  burden  of  the 
child's  support.2  Whether  such  title  on  her  part  could  be  so 
well  enforced  against  the  child's  own  consent,  and  to  the  extent 
of  depriving  the  child  of  the  fruits  of  his  own  toil,  especially  if 
the  mother  remarries,  or  does  not  support  him,  may  be  reasonably 
doubted.3 

§  255.  Parent  has  no  Right  to  Child's  General  Property.  — As 
a  rule,  the  parent  has  no  rights  over  the  child's  general  prop- 
erty. The  law  treats  legacies,  gifts,  distributive  shares,  and 
the  like,  which  may  vest  in  a  person  during  minority,  as  his 
own  property  ;  and  the  modern  practice  is  to  require  the  ap- 
pointment of  a  guardian  in  such  cases,  to  manage  the  estate 
until  the  child  comes  of  age.*  Under  no  pretext  may  the 
father  appropriate  such  funds  to  himself,  or  use  them  to  pay 
his  own  debts  ;  and  an  administrator  or  trustee  who  pays  the 
child's  money  to  the  father  as  parent  incurs  a  personal  risk.5 
The  same  may  be  said  of  the  child's  lands.6  And  the  parent's 
investment  of  his  child's  money  for  the  latter's  benefit  will  be 
protected  against  all  creditors  of  the  former,  who  are  chargeable 
with  notice  of  the  child's  rights.7  While  the  parent  may  be 
called  the  natural  guardian  of  the  child,  this  is  not  such  a  guar- 
dianship as  gives  the  right  to  control  or  manage  the  child's 

1  McElmurray  v.  Turner,  86  Ga.  215.  a    fraud    upon    others.      Richardson's 

2  158  Mass.  402.  Case,  L.  R.  19  Eq.  588. 

3  See  Matthewsonr.  Perry,  37  Conn.  5  Perry  v.  Carmichael,  95  111.  519; 
435 ;    Hammond  v.  Corbett,"  50  N.  H.  Clark  v.  Smith,  13  S.  C.  585. 

501  ;    Hays  v.   Seward,   24    Ind.    352 ;  6  As  to  conveying  an  easement,  see 

Hollingsworth  v.  Swedenborg,  49  Ind.  Farmer  v.  McDonald,  59  Ga    509.     A 

378 ;     Lind     v.     Sullestadt,    21     Hun,  father,   as  such,    cannot   be   judicially 

364.  empowered  to  sell  his  son's  land.    Guynn 

4  Keeler  v.  Fassett,  21  Vt.  539  ;  v.  McCauley,  32  Ark.  97.  See  English 
Jacksou  v.  Combs,  7  Cow.  36 ;  Miles  v.  Act  44  &  45  Vict.  c.  41,  as  to  manage- 
Boyden,  3  Pick.  213;  Cowell  v.  Dag-  ment  of  an  infant's  lands. 

gett,  97  Mass.  434  ;  Kenningham  v.  7  McLaurie  v.  Partlow,  53  111.  340. 
M'Laughlin,  3  Monr.  30.  And  see  But  as  to  payments  of  income  bv  the 
Guardian  and  Ward,  infra.  But  see  debtor  to  the  natural  guardian,  which 
Selden's  Appeal,  31  Conn.  548.  A  fa-  income  is  applied  to  the  child's  neces- 
ther  who  buys  property  for  himself  sary  use,  see  Southwestern  R.  v.  Chap- 
in  his  son's  uame  must  not  perpetrate  man,  46  Ga.  557. 

403 


§256 


THE   DOMESTIC   RELATIONS. 


[PART   III. 


property ;  for  here  a  chancery  or  prohate  appointment  should 
be  made  ;  but  equity  would  hold  the  parent  to  account  like  any 
intermeddler  or  holder  of  trust  funds.1 

§  256.  Constitutional  Right  of  Legislature  to  interfere  ■with 
Parent.  —  The  rights  of  parents  in  relation  to  the  custody  and 
services  of  their  children  may  be  enlarged,  restrained,  and  lim- 
ited, as  wisdom  or  policy  may  dictate,  unless  the  legislative 
power  is  limited  by  some  constitutional  prohibition.2  But  it 
is  held  that  the  State  has  no  constitutional  right  to  interfere 
with  the  parent  and  take  charge  of  a  child's  education  and  cus- 
tody, on  the  mere  allegation  that  he  is  "  destitute  of  proper 
parental  care,  and  is  growing  up  in  mendicancy,  ignorance, 
idleness,  and  vice."  3  On  the  other  hand,  a  statute  not  penal 
in  character,  by  which  the  State,  as  'parens  patrice,  assumes  the 
care  and  custody  of  neglected  children  so  as  to  supply  to  them 
the  parental  custody  they  have  lost,  is  pronounced  constitu- 
tional.4 Nor  as  to  such  children  do  American  courts  yield 
greatly  to  considerations  of  the  parental  religion  as  binding 
their  discretion  for  the  child's  welfare.5 


1  See  Bedford  v.  Bedford,  136  111. 
354;  Guardian  &  Ward,  Part  IV. 
post. 

2  United  States  v.  Bainbridge,  1 
Mason,  71,  per  Story,  J.;  Bennet  v. 
Bennet,  2  Beasl.  114;  State  v.  Clottu, 
3.3  End.  409. 

8  People  v.  Turner,  55  111.  280. 

"  Sunday  laws  "  of  Vermont  do  not 
prevent  a  father  from  journeying  to 
see  his  children,  who  are  properly  ab- 
sent from  home.  McCrary  v.  Lowell, 
44  Vt.  110. 

4  Farnham  v.  Pierce,  141  Mass.  203; 

404 


Whalen  v.  Olmstead,  61  Conn.  263;  18 
Ore.  339  ;  161  Mass.  70. 

5  Whalen  v.  Olmstead,  61  Conn.  263 ; 
18  Ore.  339.  Where  a  statute  gives  to 
a  board  of  public  institutions  the  power 
to  control  the  custody  and  education  of 
children  committed  to  them,  its  discre- 
tion will  be  favored,  161  Mass.  70.  But 
in  a  temporary  commitment  the  parent 
who  can  show  that  the  object  of  the 
commitment  has  been  accomplished  and 
that  the  child's  welfare  would  be  pro- 
moted by  a  restoration  of  custody  is  en- 
titled to  be  heard.     152  Mass.  432. 


CHAP.  IV.]  CHILD'S   INJURIES   AND   FRAUDS.  §  258 


CHAPTER  IV. 

THE   PARENT'S   RIGHTS   AND    LIABILITIES   FOR  THE   CHILD'S 
INJURIES    AND    FRAUDS. 

§  257.  Injuries,  &c,  committed  upon  or  by  the  ChHd.  ■ — Two 
distinct  topics  are  to  receive  treatment  in  the  present  chapter, 
under  the  head  of  the  parent's  rights  and  liabilities  for  the 
child's  injuries  and  frauds.  First,  the  parent's  right  of  action 
where  his  child  is  the  injured  party.  Second,  the  parent's  lia- 
bility to  action  where  his  child  is  the  injuring  party. 

§  258.  Injuries  committed  upon  the  Child  ;  Parent's  Right  to 
Sue.  —  First.  Where  a  child  suffers  wrong,  he  has  his  action 
for  the  personal  injury.1  But  besides  this,  the  parent  may 
usually  claim  indemnity  for  loss  of  his  child's  services,  to  which 
should  be  added  the  incidental  expenses  incurred  in  consequence 
of  the  injury.  Hence  arises  a  cause  of  action  in  the  parent 
per  quod,  the  foundation  of  which  is  a  loss  of  the  child's  ser- 
vices. There  are  various  tortious  acts,  by  which  a  parent  may 
be  deprived  of  his  child's  services ;  and  the  law  is  generous  in 
securing  compensation  for  the  injury. 

But  in  this  connection  the  parental  relation  is  not  strictly  to 
be  considered,  nor  the  loss  of  the  child's  society  and  companion- 
ship ;  the  rule  being  that  a  parent  has  no  remedy  for  an  injury 
done  to  his  child  by  the  wrongful  act  of  another,  unless  that 
child  can  be  treated  in  law  as  his  servant;2  though,  even  on 
this  principle,  a  mother,  as  the  surviving  parent  of  a  minor 
child,  may  be  permitted  to  sue  where  there  is  no  father.3 

i  See  post,   Part  V.  c.  4.     The  fact  M.   &  Or.   1041  ;   Rogers  v.  Smith,  17 

that   a  child,   by   her   father   as   next  Ind.  323  ;  Hartfield  v.  Roper,  21  Wend, 

friend,   has   recovered   damages   for  a  615;    Dennis   v.    Clark,    2    Cush.   347. 

personal     injury,    does     not     bar    the  And  see  Bigelow  and  Cooley  on  Torts, 

father's  subsequent   action  for  loss  of  3  Natchez  R.  v.  Cook,  63  Miss.  38 ; 

services   from  the  same  injury.     Wil-  supra,  §  254.     Some  late  cases  prefer 

ton  v.  Middlesex    R.,   125    Mass.    130.  to  say  that  the    right   is   based   upon 

Here  the  child  reached  majority  before  the  parental  relation,  as  distinct  from, 

the  father  sued.  though  analogous  to,  that  of  master  and 

2  2  Hilliard,  Torts,  518-529;   Addi-  servant.     59  Fed.  417. 
son,  Torts,  697  ;    Grinnell  v.  Wells,   7 

405 


§  258  THE   DOMESTIC    RELATIONS.  [PART   III. 

This  is  laid  down  positively  as  the  English  rule.  Thus,  in  a 
case  where  the  plaintiff  brought  an  action  against  the  defendant 
for  carelessly  driving  over  and  injuring  the  plaintiffs  child,  so 
that  the  plaintiff  was  obliged  to  expend  a  large  sum  of  money  in 
doctors  and  nurses,  and  it  appeared  that  the  child  was  only  two 
years  and  a  half  old,  and  incapable  of  performing  any  act  of 
service,  it  was  held  that  the  parent's  action  was  not  maintain- 
able.1 "  The  gist  of  the  action,"  it  is  here  said,  "  is  the  loss  of 
services,  and  therefore,  though  the  relation  of  parent  and  child 
subsists,  yet,  if  the  child  is  incapable  of  performing  any  services, 
the  foundation  of  the  action  fails."  2  And  it  is  doubtful  whether 
the  father,  as  such,  can  even  maintain  a  special  action  for  the 
expenses  necessarily  incurred  by  him  in  having  so  young  a 
child  cured  of  the  injury.3 

In  this  country  the  rule  appears  to  be  more  liberal  towards 
the  parent.  A  New  York  court  observes  that  it  is  really  ques- 
tionable whether  the  father  can  be  deprived  of  his  right  to  sue 
for  the  loss  of  services  on  account  of  the  child's  youth  ;  though, 
of  course,  the  right  may  be  forfeited  by  the  parent's  culpable 
negligence.4  And  in  Massachusetts  it  is  decided  that  if  an 
infant  child,  a  member  of  his  father's  household,  and  too  young 
to  be  capable  of  rendering  any  service  to  his  father,  is  wounded 
or  otherwise  injured  by  a  third  person,  or  by  a  mischievous  ani- 
mal owned  by  a  third  person,  under  such  circumstances  as  to 
give  the  child  himself  an  action  against  such  person  for  the 
personal  injury,  and  the  father  is  thereby  necessarily  put  to 
trouble  and  expense  in  the  care  and  cure  of  the  child,  he  may 
maintain  an  action  against  such  person  for  indemnity.  The 
court  laid  down  the  rule,  however,  with  much  caution.5  In 
general,  by  our  American  rule,  the  parent  may  now  recover  for 


1  Hall  v.  Hollander,  7  Dowl.  &  Ry.  nursing    and    healing   his  minor  child 

133 ;  4  Barn.  &  Cress.  6G0.  of  such  tender  years  that  it  is  incapa- 

-  Bayley,  J.,  in  ib.  ble  <>f  rendering  him  any  service,  from 

'■  Bee  Addison,  TortB,  097  ;  Grinnell  one  who  wilfully  or  negligently  injures 

v.  Wells,  h  Scott,  N.  R.  741.     Contra,  such  child.    Sykes  v.  Lawlor,  49  Cal. 

Hall  V.  Hollander,  supra.  23G;  Connell  v.  Putnam,  58  N.  H.  534. 

*  Hartfleld  v.  Roper, 21  Wend.  r,i5.  Cf.  Karr  p.Parks,44  Cal.  46;  Sawyer 

Dennis  v.  Clark,  2  Cosh.  347.    A  v.  Saner,  10  Kan.  519. 
parent   may   recover    the    expense    of 

406 


CHAP.  IV.]         CHILD'S    INJURIES    AND    FRAUDS. 


259 


loss  of  the  child's  services  during  minority,  or  at  least  while 
incapacitated,  and  the  reasonable  expense  of  the  child's  sickness 
and  restoration  to  health.1  The  child's  pecuniary  services  are 
liberally  estimated.2 

§259.  Same  Subject. — Statutes  enlarging  the  rights  of 
widows,  dependent  parents,  and  others,  in  torts  occasioned  by 
the  negligence  of  railroad  corporations  and  other  common  car- 
riers, are  to  be  found  in  England  and  America.  Under  such 
statutes  it  is  frequently  provided  that,  where  a  child  is  thus 
killed,  the  child's  administrator  may  sue  for  the  parent's  benefit. 
The  English  statute,  known  as  Lord  Campbell's  Act,  9  &  10 
Vict.  c.  93,  has  given  rise  to  suits  of  this  kind;  but  the  rule  is 
laid  down  that  such  actions  are  not  maintainable  without  some 
evidence  of  actual  pecuniary  damage,  some  loss  of  service.3 
Though  natural  equity  may  assert  otherwise,  the  common  law 
does  not  permit  a  father  to  recover  for  injuries  causing  the  im- 
mediate death  of  his  child,  either  on  the  ground  of  loss  of  ser- 
vices or  for  burial  expenses.4     And  since,  as  we  have  seen,  the 


1  Evansich  v.  Gulf  R  ,  57  Tex.  123; 
Frick  v.  St.  Louis  R.,  75  Mo.  542. 

2  But  here,  as  in  other  suits  for  dam- 
age, indirect  and  unreasonable  items  of 
damage  should  be  excluded,  as,  for  in- 
stance, the  father's  relinquishment  of  a 
lucrative  business  as  nurse,  while  nurs- 
ing his  child.  Barnes  v.  Keene,  132  N. 
Y.  13.  The  loss  of  the  child's  prospective 
society,  solace,  and  comfort,  is  not  a 
basis  in  such  suits,  but  the  pecuniary 
value  of  service  during  minority  or  as  a 
servant.  Railroad  Co.  v.  Watly,  69 
Miss.  145;  127  Ind.  545;  121  Mo.  227. 
If  the  child  be  a  burden,  instead  of  a 
support,  in  earning  capacity,  this  should 
be  considered.     98  Ala.  285. 

3  Duckworth  v.  Johnson,  4  Hurl. 
&  Nor.  653.  See,  further,  Frank  v. 
New  Orleans,  &c.  R.,  20  La.  Ann.  25  ; 
Pennsylvania  R.  v.  Bantom,  54  Penn. 
St.  495  ;  Gann  v.  Worman,  69  Ind.  458  ; 
Perry  v.  Carmichael,  95  111.  519  ;  103 
Ind.  328. 

4  Osborn  v.  Gillett,  L.  R.  8  Ex.  88, 
and  cases  cited  ;  Edgar  v.  Castello,  14 


S.  C.  20 ;  McDowell  v.  Georgia  R.,  60 
Ga.  320 ;  Carey  v.  Berkshire  R.,  1 
Cush.  475.  Parental  suit  not  allowed 
against  the  seller  of  a  revolver  to  a 
boy  of  fifteen,  in  violation  of  law,  with 
which  the  boy  carelessly  shot  himself. 
Poland  v.  Earharfc,  70  Iowa,  285.  But 
suit  allowed  against  one  who  employed 
a  child,  without  the  father's  consent, 
in  dangerous  service,  and  negligently 
caused  the  child's  death.  Fort  Wayne 
R.  v.  Beyerlc,  110  Ind.  100.  As  to 
circumstances  of  such  employment  and 
knowledge  that  the  child  was  a  minor, 
cf.  67  Tex.  190  ;  61  Tex.  262.  And  see 
58  Vt.  40.  In  suits  for  damages  caused 
by  corporate  negligence,  our  juries,  and 
sometimes  the  courts  and  legislature,  in- 
cline to  extravagant  computation  of  a 
punitive  sort.  See  rule  of  statute  held 
constitutional  in  84  Ga.  345.  Burial 
expenses,  if  the  child  dies  of  the  injury, 
are  recoverable.  121  Mo.  227.  Prospec- 
tive services  of  the  child  during  mi- 
nority, less  the  cost  of  support,  should  be 
considered  in  case  the  child  is  killed, 

407 


§  259  THE   DOMESTIC   RELATIONS.  [PART  III. 

parent's  right  of  suit  is  founded  upon  the  loss  of  a  child's  ser- 
vices, irrespective  of  the  child's  own  suit  for  damages,  there  are 
circumstances  under  which  such  suits  might  be  brought,  not- 
withstanding the  child  was  of  age,  contrary  to  the  general  rule,1 
or  where  one  stood  to  a  child  not  his  own  in  place  of  a  parent.2 

Trespass  lies^e?'  quod  for  loss  of  services  occasioned  by  assault 
and  battery  of  the  child.3  The  true  question  here,  as  elsewhere, 
seems  to  be,  whether  a  loss  of  service  was  consequent  upon  the 
injury.  For  assault  and  battery  on  the  high  seas,  there  is  like- 
wise a  remedy  in  admiralty.4 

If  the  parent  has  finally  relinquished  his  right  to  the  services 
of  his  child,  he  cannot  claim  such  damages ;  they  belong  to  the 
master,  if  any  one  ;  but  this  question  of  relinquishment  is  for 
determination  on  the  usual  principles.5  And  where  an  injury 
is  inflicted  upon  a  child  while  living  with  and  in  the  service  of 
another,  the  proper  remedy  of  the  father  is  trespass  on  the  case 
for  the  reversion,  as  it  were,  of  the  child's  services ;  as  where  a 
person  who  hired  the  son  of  another  put  him  upon  a  vicious 
horse,  so  that  he  was  thrown  and  had  his  leg  broken.6  And 
the  parent's  negligence  may,  in  certain  cases,  defeat  his  own 
right  of  action  for  loss  of  service  altogether,  as  well  as  that  of 
the  young  child  for  the  injury  suffered.7  The  death  of  the 
child  after  the  injury,  though  it  may,  on  familiar  principles, 
terminate  the  right  to  sue  for  the  child's  tort,  does  not  affect 
the  parent's  consequential  right  of  action.8  The  death  occur- 
ring before  the  commencement  of  the  suit,  if  in  consequence  of 


and    actual    pecuniary    damage     esti-  4  Plummor  v.  Wel>b,  Ware,  75. 

mateil,    95    Cal.    510.      Whether    the  5  Arnold  v.   Norton,  25    Conn.   92; 

statutory  action  by  administrator  and  Texas  R.  v.  Crowder,  61  Tex.  262. 

the    parental    action    coexist,    see    53  6  Wilt  w.  Vickera,  8  Watts,  227. 

Ark.  117.  7  See  infra,  Part  V.  c.  4;  Pierce  v. 

1   Pennsylvania     R.    v.    Keller,    67  Miliar,   62  111.  133;  Smith  v.   Heston- 

Penn.   St.  300;  .Mercer  v.  Jackson,  54  ville  R-,   92   Penn.   St.  450;   Kreis   r>. 

01.397.      And  see  infra,  §  262.  Wells,  1    E.   I).  Smith,  74;  Glassey  v, 

-  Whitaker  v.  Warren,  60  X.  II.  20;  Hestonville,  &c.  R.,  57  Penn.  St.  172. 

§  273.  8   Loss  of  services  from  the  time  of 

■:  Hammer  w.Pierce,  5  Harring.  171  j  the  child's   injury  to  the  time  of  his 

Hoover  v.  Heim, 7  Watts,62;  Plummer  death    may    be    recovered,   as   well   as 

v.  Webb,  Wan-,  75  ;  Cowd  en  w.  Wright,  incidental  expenses  incurred   for  nurs- 

24  Wend.  429.     Bui  as  to  indictments,  ing  and  medical  attendance.     Natchez 

jee  Hears!  v.  Sybert,  Cheves,  177.  B.  v.  Cook,  63  Miss.  88. 

108 


CHAP.  IV.]  CHILD*S    INJURIES    AND   FRAUDS.  §   260 

the  injury,  only  aggravates  the  parent's  remedy;  if  the  death  is 
occasioned  by  other  causes,  it  leaves  the  remedy  as  it  stood 
before.1 

§  2G0.  Suit  for  Harboring  or  Enticing  away  One's  Child  ; 
Abduction,  &c. —  Every  person  who  knowingly  and  designedly 
interrupts  the  relation  subsisting  between  parent  and  child,  by 
procuring  the  child  to  depart  from  the  parent's  service,  or  by 
harboring  and  keeping  him  after  he  has  quitted  his  home,  com- 
mits a  wrongful  act,  for  which  he  is  responsible  to  the  parent. 
The  offence,  where  force  was  not  used,  is  known  as  enticement, 
and  the  rule  applies  to  the  relation  of  master  and  servant.  In 
such  cases,  again,  the  parent  sues  on  a  principle  analogous  to 
that  of  the  master;  namely,  because  of  an  alleged  loss  of  ser- 
vice ;  or  possibly  in  trespass  vi  et  armis  upon  the  more  reason- 
able^allegation  of  loss  of  the  child's  society.2  And  this  action 
will  lie  on  behalf  of  the  mother  after  the  father's  death.3  The 
quo  animo  of  the  defendant  in  such  suits  is  always  material. 
To  afford  shelter  is  one  thing;  to  encourage  filial  disobedience 
another.  The  mere  employment  of  a  runaway  child  does  not 
amount  to  enticement.4  But  where  it  appears  that  the  defend- 
ant, knowing  that  the  son  had  absconded  from  his  father, 
boarded  him  in  his  family  and  allowed  him  to  work  on  his 
farm  as  he  pleased,  doing  this  with  the  intention  of  aiding  or 
encouraging,  or  with  the  knowledge  that  it  aids  and  encourages 
the  son  to  keep  away  from  the  father,  he  is  liable  to  this  action.6 

1  Plummer  v.  Webb,  Ware,  80;  Rice,  76  N.  C.  194;  Queen  v.  Prince, 
Winsmore  v.  Greenbank,  Bull.  N.  P.  L.  R.  2  C.  C.  154.  The  doctrine  of  en- 
78;  Ihl  v.  Street  R.,  47  N.  Y.  317.  ticement    extends   to   the    relation    of 

2  Lumley  v.  Gye,  2  El.  &  B.  224;  Master  and  Servant,  where  it  will  be 
Kirkpatrick  v.  Lockhart,  2  Brev.  276  ;  considered  further.  See  post,  Part  VI. 
1  Woodes,  Lee.  451  ;  Sargent  v.  Mathew-  c.  4  ;  Noice  v.  Brown,  39  N.  J.  L.  569  ; 
son,  38  N.  H.  54  ;  3  Bl.  Cora.  140.  Morgan  v.  Smith,  77  N.  C.  37.     Where 

3  Jones  v.  Tevis,  4  Litt.  25 ;  Moore  one's  minor  child  is  enticed  away  or 
v.  Christian,  56  Miss.  408.  harbored  against  the  father's  will,  and 
4  Keane  v.  Boycott,  2  H.  Bl.  511;  without  justification,  the  offender  can- 
Butterfield  v.  Ashley,  6  Cush.  249.  not,  of  course,  recover  for  the  child's 
8  Sargent  v.  Mathewson,  38  N.  H.  board.  Schnuckle  v.  Bierman,  89  111. 
54 ;  Everett  v.  Sherfey,  1  Iowa,  356.  454.  But  where  one  employs  a  run- 
Indictment  lies  under  fit  circumstances  away  child  bona  fide,  without  being 
tor  the  offence  of  abduction  or  entice-  guilty  of  this  offence,  he  may  offset 
ment  of  one's  minor  child.  See  Lang-  wages  due  the  father  by  the  expense  of 
ham   v.   State,  55   Ala.   114;    State  v.  actual  support  of  the  child.     Huntoon 

409 


§  260  THE   DOMESTIC    RELATIONS.  [PART  III. 

And  to  harbor  or  entice  away  an  innocent  child  for  immoral 
and  corrupt  purposes  is  an  outrage  criminally  dealt  with  be- 
sides.1 Enticement  of  a  minor  child  may  be  the  basis  of  a 
parental  suit  for  damages  where  fraudulent  representation  misled 
both  child  and  parent.2 

A  parent  may  maintain  a  libel  in  the  admiralty  for  the 
wrongful  abduction  of  the  child,  a  minor,  and  carrying  him  be- 
yond the  seas.3  Abduction  or  kidnapping  is  an  offence  similar 
to  enticement,  but  implying  the  use  of  force  rather  than  persua- 
sion ;  and  the  parental  remedies  are  similar.  Where  father  and 
mother  live  apart,  the  mother's  assent  to  the  child's  enlistment 
as  a  sailor  may  sometimes  affect  the  father's  remedies.4  But 
some  parental  ratification  of  the  son's  contract  of  enlistment 
should  be  shown,  in  order  to  defeat  the  parent's  right  of  action  ; 
and  similar  principles  apply  in  the  case  of  an  army  enlistment; 
there  being,  doubtless,  cases  where  a  parent  may  sue  one  at  law 
for  unlawfully  harboring  and  concealing  his  young  child,  and  so 
inducing  him  to  enlist  as  a  soldier.5 

There  must  be  a  reasonable  limit  to  suits  by  the  parent  for 
loss  of  his  child's  services  or  society.  Hence  it  is  now  well 
settled  in  this  country  that  the  parent  cannot  sue  for  enticing 
his  child  into  a  marriage  against  the  parent's  consent.6     For  a 

v.  Hazelton,  20  N.  H.  388.     The  father  100  N.  Y.  590;  15  Lea,  674 ;  56  Mich. 

may  sue  on  the  basis  of  a  contract  for  544. 

his  absconding  child's  wages;    but  he  '-'  As  where  a  married  man  gained  a 

is  put  to  his  election,  and  the  suit  in  female  child's   affections   and    induced 

tort  against  the  employer,  for   unlaw-  the  father's  consent  to  their  marriage 

fully  enticing  or    harboring    his  minor  by  fraudulently  representing  himself  as 

child,  precludes  the  action  of  assumpsit  single,  and  the  girl,  on  discovering  the 

as    for   wages    earned.     Thompson    v.  falsehood,  committed  suicide.     Lawyer 

Howard,  .'il    Mich.  309;  Grand    Rapids  v.  Fritcher,  130  N.  Y.  939. 
I;,  v.  Showers,  71  Ind.  451.  8  Steele  r.  Thar-her,  Ware,  91  ;  Plum- 

1  See  §  261  ;  People  v.  Marshall,  59  mer  r.  Webb,  4  Mason,  380.     See  Cut- 

Cal.  886  |   State    V.  Cordon,  46  N.  J.  L.  ting  v.  Seabury,  Sprague,  522;   Weeks 

432.     Whether  force  or  persuasion  was  v.  Holmes,  12  Cush.  215. 
u      I   in  - 1 1 <  1 1  abduction  <>f  a  child  does  4  Wodell  v.  Coggeshall,  2  Met.  89. 

Dot  affect  the  parental  right  of  action.  And  see   Worcester    v.   Marchant,   14 

Lawrence  v.  Sponce,  99  N.  Y.  669.    But  Pick.  510. 

criminal  prosecutions  for  enticing,  &c,         6  Caughey  v.  Smith, 47  N.  Y.  244. 
for    purposes  of   prostitution   may   fail,  fi  Jones  v.  Tevis,  4  Litt.  25  ;   Hervey 

where   it   appears  that  the  child   was  v.  Moselev,  7  Gray,  479 ;    Goodwin  v. 

lewd  and  went  of  her  own  free  will,  Thompson,  2  Greene  (Iowa),  329.     Hut 

being  of  suitable  age.     People  V.  Plath,  see  Hills  v.  Hubert,  2  Rout,  48.    It  is 

410 


CHAP.  IV.]  CHILD'S    INJURIES    AND    FRAUDS.  §  261 

forcible  abduction,  resulting  in  an  imperfect  marriage,  and 
aggravated  cases  of  a  like  nature,  where,  in  fact,  there  is  not 
a  valid  union,  there  might  be  a  remedy.  So  the  marriage 
statutes  not  unfrequently  provide  penalties  to  be  meted  out  to 
offenders  who  aid  and  encourage  infants  in  evading  statutes 
requiring  the  consent  of  parents  or  guardians.  But  for  drawing 
children  of  suitable  age  into  a  marriage  which  pleases  them- 
selves, the  law  affords  no  redress  ;  nor  can  it  punish  for  the 
sake  of  parental  discipline.  And  even  though  the  match  be 
unhappy,  yet  marriage  must  supersede  the  filial  relation.1  Nor 
can  a  parent  sue  a  school  teacher,  school  trustees,  or  others,  for 
excluding  his  children  from  school ;  the  right  of  action,  if  any, 
being  in  the  child,2  and  there  being  no  real  loss  of  services  con- 
sequent upon  the  affront.  In  short,  the  general  rule  is  to  place 
all  actions  by  the  parent  on  the  sole  ground  of  value  of  the  lost 
services  of  the  child,  who  is  regarded  as  a  servant  for  the  pur- 
pose of  the  suit ;  not  to  punish,  for  the  sake  of  the  father,  those 
who  wrong  the  child.3  And  the  most  liberal  view  of  the  sub- 
ject indicated  by  American  courts  is  to  regard  the  parent  as  in 
a  measure  entitled  to  the  society  and  solace  of  his  own  chil- 
dren ;  though  this  reasonable  position  is  not  clearly  supported 
by  authority,  but  on  the  contrary  is  usually  denied.4 

§  261.  Suits  for  Seduction  of  a  Child.  —  Even  in  seduction 
suits  the  same  technical  principle  is  rather  absurdly,  though 
not  always  unkindly,  applied.  The  foundation  of  the  action 
by  a  father  to  recover  damages  against  the  wrong-doer  for  the 
seduction  of  his  daughter  has  been  uniformly  placed,  from  the 

not  "  kidnapping  "  to  carry  away  a  girl  Donahoe  ?•.  Richards,  38  Me.  376  ;  Boyd 

of  suitable   age   and   then    marry    her  v.  Blaisdell,  15   Ind.  73;  Stephenson  v. 

with  her  cousent.     Cochran    v.   State,  Hall,   14   Barb.   222.      Contra,   Roe   v. 

91  Ga.  763.  Deniing,  21  Ohio  St.  666. 

1  Marrying  a  parent's  son  and  heir  3  Hall  v.  Hollander,  4  B.  &  C.  660 ; 
was  a  civil  injury  at  common  law,  Grinnell  v.  Wells,  7  M.  &  Gr.  1033; 
during  the  continuance  of  the  military  Eager  v.  Grim  wood,  1  Exch.  61.  But 
tenures,  for  thereby  the  parent  lost  the  see  dictum  in  Stephenson  v.  Hall,  14 
value  of  his  child's  marriage  ;  but  this  Barb.  222. 

injury  ceased  long  ago,  with  the  right         4  A  separated  mother  in  possession 

on  which  it  was   founded.     See  3    Bl.  of  a  minor  child  cannot  prosecute  as  a 

Com.  140,  and  notes.     But  see  Lawyer  kidnapper  the  father  who  gets  the  child 

v.  Fritcher,  130  N.  Y.  239.  away.     129  Penn.  St.  138. 

2  Spear  v.  Cummings,  23  Pick.  224; 

411 


§  261  THE   DOMESTIC   RELATIONS.  [PART  III. 

earliest  times,  not  upon  the  seduction  itself,  which  is  the  wrong- 
ful act  of  the  defendant,  but  upon  the  loss  of  service  of  the 
daughter,  in  which  he  is  supposed  to  have  a  legal  right  or  in- 
terest.1 At  common  law  the  seduced  woman  herself  has  no 
cause  of  action  against  her  seducer.2  And  without  some  allega- 
tion and  proof  of  loss  of  service  in  a  parent  or  master  the  action 
is  not  maintainable.  Our  local  statutes,  however,  sometimes 
change  this  basis  of  action  in  favor  rather  of  a  loss  of  society 
and  solace.3 

Thus,  where  it  was  alleged  by  the  father  that  his  daughter 
was  a  poor  person,  maintaining  herself  by  her  labor  and  per- 
sonal services,  and  not  of  sufficient  ability  to  maintain  herself 
otherwise ;  and  that,  by  being  debauched,  she  became  unable  to 
work,  and  had  to  be  maintained  by  her  father  at  considerable 
expense,  —  all  this  was  held  insufficient  allegation  of  loss  of  ser- 
vice.4 So  it  is  not  enough  to  show  that  the  father  had  appren- 
ticed his  daughter  to  the  defendant  to  learn  millinery,  and  had 
paid  him  a  large  sum  of  money  to  instruct  her  in  a  trade,  but 
that  the  defendant  seduced  her  and  rendered  her  unable,  by 
reason  of  pregnancy,  to  learn  the  trade.5  But  the  evidence  of 
service  may  be  very  slight;  for  the  making  tea,  milking  cows, 
or  doing  any  household  work  at  the  command  of  the  parent,  is 
esteemed  quite  sufficient  to  constitute  the  relationship  of  master 
and  servant,  when  the  girl  is  residing  with  her  father  and 
mother6 ;  and  the  right  of  action  once  clear,  damages  far  in  ex- 
cess of  the  loss  of  service  are  usually  recoverable,  damages  which 
practically  regard  the  wrong  done  by  her  disgrace  to  the  young 
woman's  household  and  to  her  own  character  and  prospects. 
Thus  will  justice,  seeing  the  goal  eharly,  drive  straight  towards 
it,  regardless  of  obstructions;  either  finding  an  avenue  or  mak- 
ing one. 

1  Grinnell  v.  Wells,  7  M.  &  Gr.  1033 ;  8  90  Tenn.  673  ;  73  Mich.  588. 

Eagei  '■.  Grimwood,  1  Exch.  61 ;  Van  4  Grinnell  v.  Wells,  7  M.  &  Gr.  1033. 

Born   <-.  Freeman,  1  Halst.  322;   Mc-  6  Harris  v.  Butler,  2  M.  &  W.  539. 

Daniel  <■•  Edward,  7  bed.  408;  Sutton  6  l   Addison,  Torts,  698,  701;  Ben- 

v.  Huffman,  ■  ',->  N.  J.  L.  .r>s  ;  Knighl   o.  nett  v.  Allcott,  2  T.  R.  166;  Thompson 

Wilcox,  14  N.  Y.  413;  Bartleyv.  Richt-  v.  Ross,  5  Hurl.  &  Nor.  16;  Manvell  v, 

meyer  I  I  omst.  88.  Thomson,  -J  Car.  &  P.  303;  Vossel  v. 

«  Woodward   v.   Anderson,  9  Bush,  Cole,   10  Mo.  634;  2   Kent,  Com.  205, 

624.  12th  ed.,  and  cases  cited. 

412 


«HAP.  IV.]         CHILD'S    INJURIES    AND   FRAUDS.  §  261 

But  to  render  this  aetion  maintainable,  the  parent  must  have 
a  genuine  right  to  his  daughter's  services,  however  slight  the 
services  which  may  be  exacted.  II*  therefore  the  daughter,  at 
the  time  she  was  seduced,  was  at  the  head  of  an  establishment 
of  her  own,  and  her  father  was  living  with  her  as  a  visitor  in 
her  own  house,  she  cannot  be  treated  as  holding  the  subordinate 
position  of  a  servant,  and  the  action  will  not  lie.1  Nor  can  a 
parent  sue,  as  the  stricter  rule  is  laid  down,  where  the  child  is 
really  in  the  service  of  another,  and,  by  permission  of  her  mis- 
tress, comes  home  to  render  slight  assistance  from  time  to  time.2 
Nor  where  the  child  is  seduced  while  in  the  service  of  another, 
and  then  returns  home  and  remains  there  in  a  state  of  preg- 
nancy.3 Nor  where  one's  daughter  had  been  left  to  shift  for 
herself  and  was  another's  household  servant.4  But  if  the 
daughter  is  away  only  on  a  temporary  visit,  and  still  forms 
part  of  her  father's  family,  and  makes  herself  serviceable  to 
him  while  she  is  at  home,  such  temporary  absence  constitutes 
no  impediment  to  an  action  by  the  father  for  damages.5  In  a 
word,  the  question  is  whether  there  was,  at  the  time  the  injury 
was  committed,  a  bona  fide  relation  of  constructive  service  be- 
tween parent  and  child,  which  suffered  by  the  wrongful  act  of 
the  defendant. 

This  rule  of  constructive  service  is,  however,  carried  very  far, 
by   many    of    our   later   and   humane    decisions.6     Such    cases 

1  Manley  v.  Field,  7  C.  B.  n.  s.  96.  a  farm  about  a  mile  from  her  father, 

2  Thompson  v  Ross,  5  Hurl.  &  Nor.  and  part  of  the  time  with  her  father. 
16  ;  Hedges  v.  Tagg,  L.  R.  7  Ex.  283;  While  the  rule  was  fully  approved  that 
Blaymire  v.  Haley,  6  M.  &  W.  55.  And  the  father  and  daughter  must  have 
see  Kinney  v.  Laughenour,  89  N.  C.  stood  in  the  relation  of  master  and  ser- 
365.  vant  at  the  time  the  injury  was  com- 

3  Davies  v.  Williams,  10  Q.  B.  725.  mitted,  it  was  further  held  that  it  was 

4  Ogborn  v.  Francis,  44  N.  J.  L.  not  necessary  that  the  daughter  should 
441.  be  in  the  actual  service  of  the  father  at 

5  Griffiths  v.  Teetgen,  15  C.  B.  344;  the  time  of  the  seduction,  if  the  relation 
28  E.  L.  &  Eq.  371.  See,  further,  1  Ad-  of  master  and  servant  then  existed  be- 
dison,  Torts,  698 ;  Evans  v.  Walton,  L.  tween  them  ;  in  other  words,  that  the 
R.  2  C.  P.  615.  service  rendered  need  not  be  house  ser- 

6  There  is  a  New  Jersey  case,  where  vice,  nor  service  from  day  to  day,  but 
it  appeared  in  evidence  that  the  daugh-  that  any  accustomed  service  lost  by 
ter  was  about  twenty-two  years  of  age  the  injury  would  sustain  the  action, 
when  seduced,  and  was  living  a  part  of  Sutton  v.  Huffman,  32  N.  J.  L.  58. 
the  time  with  her  brother,  who  occupied  And  see  Greenwood  v.  Greenwood,  28 

413 


§261 


THE   DOMESTIC    RELATIONS. 


[PART  III. 


illustrate  the  generous  disposition  with  which  the  courts  up- 
hold a  parent's  right  of  action  in  seduction  suits ;  and  it 
is  probably  at  any  point  short  of  her  abode  in  another 
household  where  the  parent  has  relinquished  the  right  of  her 
service  past  the  power  of  recall,  that  the  bounds  should  be 
placed  to  this  rule  of  a  daughter's  service  entitling  the  parent 
to  sue  fur  damages.1 


Md.  370;  Ellington  v.  Ellington,  47 
Miss.  329  ;  Emery  v.  Gowen,  4  Me.  33  ; 
Simpson  v.  Grayson,  54  Ark.  404.  In 
these  and  some  other  cases  there  is  a 
manifest  tendency  to  exclude  a  presump- 
tion of  emancipation,  so  as  to  leave  the 
parent's  remedy  unimpaired.  The  rule 
in  Virginia  is  more  strict.  Lee  v. 
Hodges,  13  Gratt.  726.  In  New  York, 
the  doctrine  of  Martin  v.  Payne,  9 
Johns  387,  and  other  cases,  led  to  much 
confusion,  by  permitting  suits  to  be 
brought  where  there  was  in  reality  no 
loss  of  service  sustained.  But  in  the 
later  cases  the  courts  have  returned  to 
the  strictness  of  the  English  rule. 
Bartlev  v.  Richtmeyer,  4  Comst.  38. 
And  cf.  earlier  and  later  notes  to  2 
Kent,  Com.  205.  In  a  recent  English 
case  the  plaintiff's  daughter,  being 
under  age,  left  his  house  and  went  into 
service.  After  nearly  a  month  the 
master  dismissed  her  at  a  day's  notice, 
and  the  next  day,  on  her  way  to  her 
father's  house,  the  defendant  seduced 
her.  It  was  held  that  as  soon  as  the 
real  service  was  terminated  by  the  mas- 
ter, whether  rightfully  or  wrongfully, 
the  girl  intending  to  return  home,  the 
right  of  the  father  to  her  services  re- 
vived, and  thai  there  was,  therefore,  sulli- 
cient  evidence  of  service;  to  maintain  an 
action  for  the  seduction.  Terry  r. 
Hutchinson,  L.  R.  3  Q.  B.  599  (1868). 
And  see  Evans  o.  Walton,  L.  R.  2  C  P. 
615.  This,  the  court  admitted,  was 
carrying  the  doctrine  <>f  constructive 
service  very  far.  "The  action,  uo 
doubt,  is  founded  on  the  special  ground 
(this  is  not  very  credit- 
able, perhaps,  to  our  law),  bul  the  ac- 
tion is  substantially  for  the  aggravated 

Ml 


injury  that  the  father  has  sustained 
in  the  seduction  of  the  child."  Per 
Cockburn,  C.  J.,  in  Terry  v.  Hutchiu- 
inson,  L.  R.  3  Q.  B.  599. 

1  Where  the  father  verbally  agrees 
that  his  daughter  shall  reside  as  ser- 
vant iu  a  stranger's  family  for  a  cer- 
tain number  of  years,  this  does  not 
debar  his  right  to  recover  for  her 
seduction  during  minority  by  her  em- 
ployer's son.  Mohry  v.  Hoffman,  86 
Penn.  St.  358.  Cf.  White  v.  Murtland, 
71  111.  252.  In  other  words,  the  father 
may  sue  per  quod  where  he  does  not 
relinquish  the  daughter's  services,  but 
retains  the  right  to  command  them, 
though  she  resides  elsewhere.  Mohry 
v.  Hoffman,  supra ;  Blagge  v.  Ilsley, 
127  Mass.  191.  Very  slight  service  at 
home  every  Sunday,  where  the  daugh- 
ter is  employed  by  another,  suffices. 
Kennedy  v.  Shea,  110  Mass.  147  ;  Rid- 
dle v.  McGinnis,  22  W.  Va.  253. 

Enticing  one's  daughter  away  for 
the  purpose  of  prostitution  or  concubi- 
nage or  seduction,  is  made  an  indict- 
able offence  in  some  States.  Slocum  v. 
People,  90  111.  274  ;  State  u.  Breice,  27 
Conn.  319  ;  Wood  v.  State,  48  Ga.  192; 
Boyce  v.  People,  55  N.  Y.  644 ;  Bowers 
v.  State,  29  Ohio  St.  542;  Galvin  v. 
Crouch,  05  Ind.  50.  And  see  Bishop 
and  other  general  writers  on  Criminal 
Law  and  Toils.  The  female,  under 
sucli  statutes,  ought  in  general  to  be  of 
good  repute  for  chastity  previous  to 
I  he  offence,  and  unmarried.  But  stat- 
utes differ.  See  State  v  Jones,  16  Kan. 
0OK.  The  wimianuiiglit  have  reformed. 
Illicit  intercourse  alone;  does  not  con- 
stitute what  is  known  as  seductiou 
People  V.  Clark,  33  Mich.  112. 


CHAP.  IV.]         CHILD'S   INJURIES   AND   FRAUDS.  §  261 

It  is  not  necessary  that  the  daughter  should  be  under  age  in 
order  that  the  parent  may  maintain  the  action  for  seduction. 
The  important  question  is,  whether  emancipation  in  fact  had 
taken  place  at  the  time  of  the  injury;  for  if  the  relation  of 
master  and  servant  exists  between  the  father  and  his  grown-up 
daughter,  however  this  relation  may  have  been  created,  the 
right  of  action  is  complete.1  And  even  where  a  married 
woman,  separated  from  her  husband,  returned  to  her  father's 
house  and  lived  with  him,  performing  various  acts  of  service, 
it  was  held  that,  as  against  a  wrong-doer,  it  was  sufficient  to 
prove  that  there  was  the  relationship  of  master  and  servant  de 
facto.2  So  where  one  stands  in  loco  parentis,  he  may  recover 
damages,  as  an  actual  parent  would  ;  as  in  the  case  of  an 
orphan  living  with  a  relation,  or  a  friend  and  benefactor,  and 
rendering  such  domestic  attendance  and  obedience  as  is  usually 
rendered  by  a  daughter  to  her  father.3  But  the  parent  cannot 
maintain  an  action  for  the  seduction  of  a  daughter  over  twenty- 
one  and  working  out  on  her  own  account.4  And  while,  as 
surviving  parent,  the  mother  may  sue  for  her  daughter's  seduc- 
tion under  circumstances  showing  service  rendered  her,  it  is 
held  that  a  mother  cannot  maintain  an  action  for  the  seduction 
of  her  daughter  while  the  father  was  alive,  though  the  illicit 
offspring  was  not  born  until  after  the  father's  death.5 


1  1  Addison,  Torts,  700;  Sutton  v.  larging  the  rights  of  married  women 
Huffman,  32  N.  J.  L.  58  ;  Greenwood  sometimes  extend  the  mother's  action. 
v.  Greenwood,  28  Md.  370  ;  Stevenson  v.  Badgley  v.  Decker,  44  Barb.  577.  A 
Belknap,  6  Iowa,  97 ;  Wert  v.  Strouse,  widowed  mother  whose  minor  child  is 
38  N.  J.  L.  184.  An  imbecile  daughter  actually  in  her  service  has  the  right  of 
over  twenty-one,  who  lives  at  home  still,  action.  Gray  v.  Durland,  51  N.  Y. 
is  not  emancipated  in  any  sense  to  de-  424.  A  mother  remarried  may  have  the 
bar  a  suit.  Hahn  v.  Cooper,  84  Wis.  right  to  sue.  Lampman  v.  Hammond, 
629.  3   Thomp.   &  C.  293.     See   Hobson   v. 

2  Harper  v.  Luffkin,  7  B.  &  C.  387.  Fullerton,  4  111.  App.  282  ;  Furman  v. 

3  1  Addison,  Torts,  700 ;  Irwin  v.  Van  Sise,  56  N.  Y.  435.  But  not  one 
Dearman,  11  East,  23;  Edmonson  v.  in  whose  household  a  girl  stays  tempo- 
Machell,  2  T.  R.  4  ;  Williams  v.  Hutch-  rarily  without  any  definite  agreement 
inson,  3  Comst.  312;  Maguinay  v.  Sau-  of  service.  Blanchard  v.  Ilsley,  120 
dek,  5  Sneed,  146  ;  Ball  v.  Bruce,  21  111.  Mass.  487. 

161.  A  grandfather  standing  in  loco  parett 

4  George  v.  Van  Horn,  9  Barb.  533.  tis,  and  with  due  rights  and  obligations, 

5  Vossel  v.  Cole,  10  Mo.  634 ;  Gray  may  thus  sue.  Certwell  v.  Hoyt,  13 
v.  Durland,  50  Barb.  100.     Statutes  en-  N.  Y.  Supr.  575. 

415 


§  261  a  THE   DOMESTIC    RELATIONS.  [PART  III. 

§  261  a.  The  Same  Subject.  —  The  wrongful  act  for  which 
the  parent  sues  must  be  the  natural  and  direct  cause  of  the 
injury  for  which  damages  are  sought,  and  the  damages  recover- 
able its  necessary  and  proximate  consequence.  To  this  prin- 
ciple is  to  be  referred  a  curious  case  in  New  York.1  But 
mental  illness  directly  resulting  from  the  injury  is,  of  itself, 
sufficient  to  support  an  action  for  loss  of  services ;  and  such  a 
suit  might  be  maintainable,  notwithstanding  seduction  was  fol- 
lowed neither  by  pregnancy  nor  sexual  disease.2 

Where  a  person  hires  a  girl  as  a  servant  for  the  purpose  of 
withdrawing  her  from  her  family  and  seducing  her,  this  is 
fraud,  and  the  parent's  right  of  action  is  not  thereby  forfeited  ; 
for  in  such  a  case  the  new  relation  of  master  and  servant  is  not 
bona  fide  created,  and  the  former  relation  may  be  held  to  have 
continued.3  Fraudulent  marriage  virtually  resulting  in  a  seduc- 
tion may  be  treated  as  enticement.4  It  would  seem  as  though  the 
previous  unchasteness  of  a  girl  —  considering,  too,  her  age,  and 
her  apparent  want  of  parental  oversight  —  ought  to  affect  the 
right  of  such  suits  and  the  damages  ;  but  at  all  events  it  is  the 
general  rule  that  the  daughter's  consent  does  not  bar  the  parental 
suit  whether  the  daughter  was  willing  or  not,  and  whether  the 
person  debauching  her  accomplished  his  end  by  force  or  by  in- 
sinuating arts;  nor  is  "seduction"  commonly  applied  herein 
its  most  literal  sense.5  But  we  may  finally  observe  that  the 
latest  legislation  in  some  States  tends  to  place  seduction  suits 
on  a  more  natural  footing,  by  enabling  the  woman  to  sue  an 
offender  directly  in  damages  for  her  own  seduction  and  the 
consequent  injury.*5 

i  Knight  v.  Wilcox,  14  N.  Y.  413.  5  5  Lansing  (N.  Y.)  454  ;  Graham  v. 

See  Eager  v.  Grimwood,   1  Exch.  61  ;  Reynolds,  90  Tenn.  673. 

Boyle  v.   Brandon,   13  M.  &  W.   738;  °  Thompson  v.  Young.  51   Ind.  599 ; 

Reddie    V.   Scoolt,    Peafee,   240;    1    Ad-  Watson  v.  Watson,  4!)   Mich.   540;    50 

diaon,    Torts,    701,    as   to    the    various  Mich.  602.     To  sue  thus,  alleging  that 

grounds  of  defence  in  seduct .ion  suits.  she  permitted  seduction  in  consideration 

2  Manvell   v.  Thomson,  2  Car.  &    P.  of  a  promise  to  pay  money  which  the 

80S;  Seagerv.  Sligerland,  2Caines, 219  ;  defendant  failed  to  keep,  is  a  har  to  the 

Abrahams  V,  Kidney,  104  Mass.  222.  action.      Wilson   v.   Ensworth,    85    Ind. 

'■'■  Speight  v.  Oliviera,  2  stark.  435;  899.     But  previous  chastity  need  not  he 

2    Kent,  Com.    205;    1    Addison,   Torts,     averred.       102    Ind.   404.       Nor  special 
Dain  v.  Wyckoff,  18  N.  Y.  45.  damage.    88    Ind.    298.     A    female  of 

4  Lawyer  v.  Fritcher,  130  N.  Y.  239.     nonage  may  thus  sue.     121  Ind.  292. 

U6 


CHAP.  IV.]  CHILD'S   INJURIES   AND   FRAUDS.  §  262 

§  2T>2.   Damages   in   Parental    Suits   for   Injury  to  the  Child.  — 

As  to  the  amount  of  damages,  cases  of  seduction  stand  on  a  pe- 
culiar footing.  The  ground  of  action  is  the  loss  of  services  ; 
yet  the  rule  is  well  established  that  neither  this  nor  the  medi- 
cal expenses,  such  as  her  lying-in,  are  all  that  the  parent  can 
recover.  Lord  Ellenborough,  in  his  day,  declared  the  principle 
inveterate,  and  not  to  be  shaken,  that  in  estimating  damages  the 
jury  might  go  beyond  the  mere  loss  of  service,  and  give  damages 
for  the  distress  and  anxiety  of  mind  which  the  parent  had  sus- 
tained in  being  deprived  of  the  society  and  comfort  of  his  child.1 
So  must  the  situation  in  life  and  circumstances  of  the  parties  be 
taken  into  consideration  in  estimating  the  household  disgrace.2 
These  principles  are  applied  both  in  England  and  America. 

In  other  suits,  such  as  for  enticement,  the  measure  of  dam- 
ages applied  is  liberal,  though  the  rule  is  somewhat  conflicting 
in  different  States.  It  is  a  general  principle  that  where  ser- 
vants are  enticed  away,  or  forcibly  abducted,  the  jury  may 
award  ample  compensation  for  all  the  damage  resulting  from 
the  wrongful  act.3  A  parent  can  recover  damages  for  the  pro- 
spective   value  of  the  services  of  a  young  child   permanently 

1  Irwin  v.  Dearman,  11  East,  23.  Sellars  v.  Kinder,  1   Head,  134  ;   1  Ad- 

2  Andrews  v.  Askey,  8  Car.  &  P.  9.       dison,  Torts,  703  ;   Eager  v.  Grimwood, 
"In  point  of  form,"  observes  Lord     1   Exch.   61;  Richardson  v.  Fouts,  11 

Eldon,  "the  action  only  purports  to  Ind.  466;  Reed  v.  Williams,  5  Sneed, 
give  a  recompense  for  loss  of  service;  580;  31  Mian.  54;  Vossel  v.  Cole,  10 
but  we  cannot  shut  our  eyes  to  the  Mo.  634  ;  2  Kent,  Com.  205,  9th  ed.  n. ; 
fact  that  it  is  an  action  brought  by  a  Bigelow  on  Torts.  Exemplary  dam- 
parent  for  an  injury  to  her  child,  and  ages  have  been  denied  where  the  daugh- 
tlie  jury  may  take  into  their  consider-  ter's  willing  misconduct  appeared.  82 
ation  all  that  she  can  feel  from  the  na-  Mo.  341.  And  where  before  coufine- 
ture  of  the  loss.  They  may  look  upon  ment  the  daughter  marries  another 
her  as  a  parent  losing  the  comfort,  as  man,  the  father's  damages  may  prove 
well  as  the  service,  of  her  daughter,  in  merely  nominal.  70  Iowa,  223.  Under 
whose  virtue  she  can  feel  no  consola-  statutes  changing  the  old  rule,  the 
tion ;  and  as  the  parent  of  other  chil-  parent's  suit  is  allowed  to  embrace  not 
dren  whose  morals  may  be  corrupted  only  the  loss  of  peace  and  comfort  to 
by  her  example."  Bedford  v.  M'Kowl,  the  family,  but  the  effect  upon  the 
3  Esp.  120.  And  see  Robinson  v.  character  and  prospects  of  the  girl  her- 
Burton,  5  Harring.  335 ;  Klopfer  v.  self.  73  Mich.  588. 
Bromme,  26  Wis.  372  ;  Pence  v.  Dozier,  3  Gunter  v.  Astor,  4  Moore,  15;  1 
7  Bush,  133;  Dain  v.  Wyckoff,  18  Addison,  Torts,  704 ;  Lumley  v.  Gye,  2 
N.  Y.  45;  White  v.  Murtland,  71  111.  El.  &  Bl.  216;  Magee  v.  Holland,  3 
250.  See  further,  on  this  subject,  Dutch.  86. 
White    v.   Campbell,    13    Gratt.   573  ; 

27  417 


263 


THE   DOMESTIC    RELATIONS. 


[PART  III 


injured  or  killed  by  an  act  of  negligence;1  and  a  reasonable 
expectation  of  pecuniary  benefit  is  favorably  considered  where 
the  parent  is  old  and  infirm.2  Medical  expenses  for  the  care 
and  cure  of  the  child  with  the  expense  of  nursing,  are  of  course 
recoverable.  And  even  the  expense  of  the  mother's  sickness, 
which  was  caused,  in  an  extreme  case,  by  the  shock  to  her  feel- 
ings, has  been  treated  as  a  proper  item  of  special  damage.3  So, 
it  would  seem,  are  the  costs  of  prosecuting  the  suit.4  But  the 
parent  cannot  recover  for  lacerated  feelings,  as  well  as  for  other 
injuries  personal  to  the  child,  as  in  seduction  suits.5  But  local 
statutes  will  sometimes  affect  the  question  of  damages  here  as 
well  as  the  right  of  action  itself.6 

§  263.  Parental  Liability  where  the  Child  is  the  Injuring  Party. 
—  Second.  As  to  the  parent's  liability  to  action,  where  the  child 
is  the  injuring  party.  The  question  is  sometimes  asked,  how 
far  a  father  is  responsible  in  damages  for  the  torts  and  frauds 
of  his  infant  child.  We  have  already  seen  that  the  husband's 
responsibility  for  his  wife's  injuries  at  the  common  law  is 
founded  upon  his  right,  by  marriage,  to  her  property.  Very 
different  is  the  relation  of  parent  and  child,  wdiere,  it  is  now 
plain,  the  father  has  little  more  than  the  right  to  claim 
his  child's  wages,  so  far  as  the  infant's  property  is  concerned.7 
Yet  some  have  been  misled  into  the  belief  that  the  two  cases 


1  Supra,  §  259  ;  Drew  ;;.  Sixth  Ave- 
nue R.  R.  Co.,  26  N.  Y.  49;  Ford  v. 
Monroe,  20  Wend.  210;  Hoover  v. 
Heim,  7  Watts,  62 ;  Franklin  v.  South- 
eastern R.  R.  Co.,  3  Hurl.  &  Nor.  211. 
But  see  Williams  v.  Hutchinson,  3 
Conist.  .'S14.  For  the  loss  of  service 
f <> r  1 1 1 o  remainder  of  the  period  of  mi- 
nority, a  parent  may  usually  recover 
if  each  loss  necessarily  result ;  while  if 
tin'  injury  roiitinue  beyond  that  period 
further    right    is    usually    in    the   child. 

Traver  v.  Eighth   Avenue   R  ,  4   Abb. 
App.  122;  McDowell  y.  Georgia  R.,  60 

!0  :    Houston  R  V   Mill,  r,  49  Tex. 
822  ;  Musscy  v.  Ryan,  64  Md.  4^6. 
-  Duckworth  p.  Johnson,  4   II.  &  N. 

I  ranklio  v.  Southeastern  R.,  3  II. 
ft  N.  211. 

IIS 


3  Ford  v.  Monroe,  20  Wend.  210. 
Such  damages  appear  exceptional. 
Harford  Co.  v.  Hamilton,  60  Md. 
340. 

4  Wilt  v.  Vickers,  8  Watts,  227. 

6  Penn.  R.  R.  Co.  v.  Kelly,  31  Fenn. 
St.  372  ;  Sawyer  v.  Sauer,  10  Kan.  519  ; 
Cowden  v.  Wright,  24  Wend.  429. 
But  see,  as  to  battery  of  a  child,  Kling- 
man  v.  Holmes,  54  Mo.  304.  See  also 
liooney  v.  Milwaukee  Chair  Co.,  65 
Wis.  397. 

a  M'Carthy  r.  Guild,  12  Met.  291 ; 
Kennard  <•.  Burton,  25  Me.  39. 

7  Nor  can  the  parent  make  the  in- 
fant child's  real  estate  itself  liable,  even 
for  a  necessary  debt  of  his  own  crea- 
tion.     Cox  v.  Storts,  14  Bush,  502. 


CHAP.  IV.]  CHILD'S   INJURIES   AND   FRAUDS.  §  203 

are  entirely  analogous ;  and  they  would  hold  the  father  liable 
for  his  son's  wrongful  acts,  as  a  husband  for  the  wife's.  It 
is  held  in  Pennsylvania  that  the  father  may  be  sued  in  tres- 
•pass  for  an  injury  committed  by  his  son,  when  they  ride  to- 
gether in  the  father's  team,  and  the  act  is  committed  in  the 
latter's  presence.1  Whether  the  principle  can  be  safely  carried 
further  is  extremely  doubtful.  In  Missouri,  on  the  other  hand, 
and  with  better  reason,  it  is  decided  that  a  father  is  not  responsible 
for  an  independent  assault  committed  by  his  infant  son,  without 
his  sanction ;  not  even  though  the  child  was  known  by  him  to 
be  of  a  vicious  temper.2  The  same  rule,  with  more  caution,  has 
been  applied  in  New  York,  in  a  case  where  it  was  shown  that  a 
minor  daughter,  in  her  father's  absence,  and  without  his  authority 
or  approval,  wilfully  set  his  dog,  not  ordinarily  a  vicious  animal, 
upon  the  plaintiff's  hog,  which  was  thereby  bitten  and  killed.3 

But  for  injuries  occasioned  by  the  infant  with  his  father's 
direct  sanction  or  participation,  or  while  in  the  due  course  of 
employment  by  the  father,  the  latter  is  held  answerable  to 
others.  Thus,  a  minor  son,  under  a  contract  with  his  father 
to  clear  a  parcel  of  land,  did  it  so  negligently  as  to  destroy  a 
neighbor's  property  by  fire ;  and  for  this  the  parent  was  held  to 
damages  at  the  neighbor's  suit.4  In  Wisconsin,  quite  recently, 
a  father  was  held  liable  for  injury  sustained  by  a  passer-by 
whose  horse  took  fright,  because  he  carelessly  permitted  his 
young  children  to  fire  pistols  and  shout  on  the  highway  and 
thus  contributed  to  the  injury.5    And  while  a  parent  is  not  liable 

1  Strohl  v.  Levan,  39  Penn.  St.  177.  33  Kan.  580.  See  also  Paulin  r.  How- 
And  see  Lashbrook  v.  Patten,  1  Duvall,  ser,  63  111.  312  ;  Chandler  v.  Deaton,  37 
316.  Tex.  406;  45  Kan.  423.     The  want  of 

2  Baker  v.  Haldeman,  24  Mo.  219;  parental  knowledge  or  sanction  here 
Paul  v.  Hummel,  43  Mo.  119.  app  ared.     For  the  peculiar  rule  of  the 

3  Tifft  v.  Tifft,  4  Denio,  175.  And  Louisiana  code  as  to  parental  liability 
see  McManus  v.  Crickett,  1  East,  106  ;  in  such  cases,  see  35  La.  Ann.  13,  891  ; 
Foster  v.  Essex  Bank,   17  Mass.  479.  37  La.  Ann.  92. 

The  responsible  occupation  of  premises  4  Teagarden  v.  McLaughlin,  86  Ind. 

on  which  vicious  animals  are  kept  is  476. 

sometimes  a  legal  element.  5  Hoverson   v.  Noker,  60  Wis.   511. 

Nor  was  the  father   held   liable   in  Evidence  was  admitted  that  the  father 

damages   where   his   son  set  another's  knew   his    children    had   thus   miscon- 

property  on  fire,  in  Edwards  v.  Crume,  ducted  before.     Cf.  Hagerty  v.  Powers- 

13  Kan.  348.     And  see  Baker  v.  Morris,  66  Cal.  368. 

419 


§  263 


THE    DOMESTIC    RELATIONS. 


[PART    III. 


for  an  independent  trover  and  conversion  committed  by  his 
child,  he  becomes  liable  where  he  learns  of  it  and  continues  to 
enjoy  the  benefit  of  the  wrong.1 

For  all  such  injuries  (subject  to  the  usual  scope  of  negligent 
performance  as  another's  agent  or  servant2)  an  infant  is  answer- 
able at  law,  out  of  his  own  estate  ;  at  least,  if  he  is  old  enough 
to  have  known  better.3  But  how  as  to  the  parent's  liability  ? 
For  that  is  the  present  issue.  The  principles  of  the  Roman  law 
cannot  be  cited  to  much  advantage,  in  support  of  such  liability, 
on  the  score  of  agency,  or  otherwise ;  since  under  that  system 
the  child  was  little  better  than  the  slave  of  his  father ;  and  even 
as  to  slaves,  it  was  considered  at  the  time  of  the  Institutes  that 
it  would  be  very  unjust,  when  a  servant  did  a  wrongful  act,  to 
make  the  master  lose  anything  more  than  the  servant  himself.4 
The  modern  rule  of  the  civil  law,  in  European  countries,  is  to 
make  every  person  responsible  for  injuries  caused  by  the  act  of 
persons  and  things  under  his  dominion ;  but  a  father  incurs  no 
responsibility  for  the  act  of  his  minor  child,  if  he  can  prove 
that  he  was  not  able  to  prevent  the  act  which  gives  rise  to  the 
liability.6 


i  Hower  v.  Ulrich,  156  Perm.  St. 
410. 

2  See  §§489-491. 

»  Campbell  v.  Stakes,  2  Wend.  137; 
"  Infancy,"  post,  Part  V.  c.  4  ;  Smith  v. 
Davenport,  45  Kan.  423. 

*  Smith's  Diet.  Greek  and  Roman 
Antiq.  "Novalis  Actio."  Inst,  lib  4, 
tit.  8,  by  Saunders. 

5  Civil  Code  France,  art.  1384 ; 
Cleaveland  v.  Mayo,  19  La.  414.  See 
Baker  v.  Haldeman,  24  Mo.  219. 

This   point    received  some  attention 
in  a  modern    English  case,  where  the 
father  of  a  young  man,  about   seven- 
teen or  eighteen,  was  sued  for  trespass 
and  Ealse  imprisonment.     The  plaintiff 
n  ip  1 1  •  man    at    a   theatre,    of 
which   the  defendant  was  lessee.     The 
■  man,  minor  sun  of  the  defend- 
ant, acti  i    as    his    father's    treasurer. 
The  plaintiff,  in  hie  character  of  prop- 
nan     presented    to  the   treasurer 
an  account,  containing  some  wrongful 
420 


items  of  disbursement.  The  defendant, 
conceiving  this  to  be  an  intentional 
fraud  on  the  part  of  the  plaintiff,  dis- 
missed him  from  his  employment.  His 
smi  thereupon,  without  consulting  the 
father,  indiscreetly  caused  the  plaintiff 
to  he  apprehended  by  a  policeman, 
and  taken  to  the  station  on  a  charge 
of  obtaining  money  by  false  pretences. 
The  plaintiff  went  before  a  magistrate, 
and  was  remanded,  but  was  ultimately 
discharged.  After  the  remand,  the  son 
told  his  father  what  he  had  done;  the 
latter  did  not  prohibit  him  from  pro- 
ceeding in  the  matter,  but  said  that  as 
the  son  had  begun  it,  he  would  not  in- 
terfere. The  court  decided  that  these 
facts  showed  neither  a  previous  au- 
thority nor  a  snbsequenl  ratification  by 
the  father,  sufficient  to  render  him  lia- 
ble for  his  sun's  conduct,  and  on  that 
ground  dismissed  the  suit.  Moon  r. 
Towers,  8  C.  B.  n.  s.  611.  The  opinions 
of  the  several  judges  in  this  case,  though 


CHAP.  V.]  DUTIES   AND   EIGHTS   OF   CHILDREN.  §  2G4 

On  the  whole  it  may  be  stated  as  a  rule  of  our  common  law 
that  a  lather  is  not  liable  in  damages  for  the  torts  of  his  child, 
committed  without  his  knowledge,  consent,  participation,  or 
sanction,  and  not  in  the  course  of  his  employment  of  the  child. 


CHAPTER  V. 


DUTIES   AND   RIGHTS    OF    CHILDREN,   WITH    REFERENCE    TO 
THEIR   PARENTS. 

§  264.  General  Duties  of  Children  to  Parents.  —  "The  duties 
of  children  to  their  parents,"  says  Blackstone,  "  arise  from  a 
principle  of  natural  justice  and  retribution.  For  to  those  who 
gave  us  existence  we  naturally  owe  subjection  and  obedience 
during  our  minority,  and  honor  and  reverence  ever  after;  they 
who  protected  the  weakness  of  our  infancy  are  entitled  to  our 
protection  in  the  infirmity  of  their  age ;  they  who  by  sustenance 
and  education  have  enabled  their  offspring  to  prosper  ought  in 
return  to  be  supported  by  that  offspring  in  case  they  stand  in 
need  of  assistance."  1  Upon  this  principle  rest  whatever  duties 
are  enjoined  upon  children  to  their  parents  by  positive  law. 
The  Athenians  compelled  children  to  provide  for  their  father 
when  fallen  into  poverty.2  And  Kent,  enforcing  the  same 
precept,  cites  several  other  historical  precedents  less  to  the 
purpose.3 

expressed  by  way  of  dicta,  exhibit  con-  son  had  knocked  the  plaintiff  down,  and 

siderable  reluctance  to  hold  the  father  the  father  had  said,  '  I  think  it  served 

liable,  as  a  trespasser,  for  his  son's  torts,  him  right,'  would  that  be  such  a  ratili- 

Says  Willes,  J.,  approved  by  Bvles,  J.,  cation  of  the   son's  act  as  to  make  the 

16. ;  Williams.  J.,  dub. :  "  The  tendency  father  liable  as  a  trespasser  ? "   Per  Erie, 

of  juries,  where  persons  under  age  have  C.  J.,  ib.    As  to  the  injuries  of  a  servant, 

incurred  debts  or  committed  wrongs,  to  and  his  master's  liability,  see   Master 

make  their  relatives  pay,  should,  in  my  and  Servant,  infra,  §§  488-491. 
opinion,  be  checked  by  the  courts      No  1   1  Bl.  Com.  453. 

man  ought,  as  a  general  rule,  to  be  re-  2  2  Potter's  Antiq.  347-351. 

sponsible  for  acts  not  his  own."     And  3  2  Kent,  Com.  207. 

says  the  Chief  Justice :  "  Suppose  the 

421 


§  265  THE   DOMESTIC   RELATIONS.  [PART   III. 

Perhaps  this  principle  could  not  have  been  better  expressed 
than  in  these  words  of  Blackstone ;  for  it  is  to  be  observed  that 
the  obligation,  as  a  legal  one,  is  somewhat  vague  and  indefinite, 
extending  little  farther  than  the  succor  of  parents  in  distress. 
Gratitude,  certainly,  is  what  all  parents  true  to  their  trust  have 
the  right  to  expect ;  but  whether  it  is  due  to  those  who  were 
negligent  and  unfaithful  to  their  offspring  may  admit  at  this 
day  of  much  doubt.  In  other  words,  honor  and  reverence  are 
justly  awarded  according  to  one's  deserts.  The  child,  when  full 
grown,  naturally  marries  and  assumes  parental  liabilities  of  his 
own ;  and  in  the  usual  course  of  things  adults,  whether  father 
or  son,  will  prudently  provide  for  their  future  as  well  as  their 
present  wants.  Some  have  thought  it  the  duty  of  fathers  to 
leave  property  to  their  children  at  their  death,  —  a  principle 
somewhat  at  conflict  with  this  right  to  lean  upon  their  children 
for  their  own  maintenance.  Yet  exceptional  cases  must  occur 
where  a  father,  faithful  to  his  own  obligations,  is  yet  left, 
through  misfortune,  penniless  in  his  old  age ;  and  here  the  voice 
of  nature  bids  the  children  aid,  comfort,  and  relieve.  Municipal 
law  quickens  the  child,  and  says,  "  If  your  parent,  however 
vagabond  and  worthless,  becomes  unable  to  maintain  himself 
the  public  shall  not  relieve  him  as  a  pauper ;  you,  his  children, 
being  of  sufficient  means,  must  assume  the  burden."  We  speak 
not  here  of  the  mother,  whose  moral  claims  upon  her  children, 
if  her  own  husband  prove  incapable,  are  much  stronger;  yet 
it  must  be  admitted  that  the  municipal  law  makes  no  great 
distinction  on  her  behalf. 

§  2G~).  Whether  Child  may  be  Legally  Bound  to  Support  Par- 
ent;  Statutes. — Thus  may  be  explained  what  appears  now  a 
well-settled  rule  at  the  common  law:  namely,  that  there  is  no 
legal  obligation  resting  upon  a  child  to  support  a  parent ;  that, 
while  the  parent  is  bound  to  supply  necessaries  to  an  infant 
child, an  adult  child,  in  the  absence  of  positive  statute,  or  ;i  legal 
contract  on  his  own  part,  is  not  bound  to  supply  necessaries  to 
his  aged  parent.1 

1   Reeve,    Dom.    Rel,   284;    Rex  v.    N.  II.  558;  Stone  >•.  Stone,  32  Conn. 
Mnnden,  i  Stra.190;  Edwards  w.  Davis,     142;  Becker  v.  Gibson,  70  Ind.  239. 
16  Johns    281;  Lebanon  v.  Griffin,  45 
[22 


CHAP.  V.]  DUTIES   AND   RIGHTS   OF   CHILDREN.  §  265 

But  statutes  have  been  enacted,  both  in  England  and  most 
parts  of  the  United  States,  to  enforce  this  imperfect  legal  obli- 
gation, usually  to  the  extent  of  relieving  cities  and  towns  from 
the  support  of  paupers.  Such  is  the  tenor  of  the  English  stat- 
utes of  43  Eliz.  and  5  Geo.  I.,  to  which  allusion  has  already 
been  made,  which  declare,  in  effect,  that  the  children,  being  of 
sufficient  ability,  of  poor,  old,  lame,  or  impotent  persons,  not 
able  to  maintain  themselves,  must  relieve  and  maintain  them.1 
Ingratitude,  to  use  the  word  in  a  more  general  sense,  the  parent 
may  punish  still  further,  as  other  statutes  prescribe,  by  disin- 
heriting the  undutiful  children  by  will;2  a  punishment  found 
by  no  means  terrible  in  cases  which  arise  under  the  statute  of 
Elizabeth.  The  moral  obligation  of  honor  and  reverence  still 
remains  clear  and  unquestioned,  so  far  as  parental  faithfulness 
has  earned  it ;  doubtful  in  its  more  extended  application,  yet 
always  a  favorite  theme  of  the  poet  and  dramatist,  and  never  to 
be  lightly  esteemed  among  men.3 

The  law  does  not  imply,  then,  a  promise  from  the  child  to 
pay  for  necessaries  furnished  without  his  request  to  an  indigent 
parent ;  and  the  natural  obligation  can  only  be  enforced  in  the 
mode  pointed  out  by  statute.*  The  promise  of  a  child  to  pay 
for  past  expenditures  in  relief  of  an  indigent  parent  is  not  bind- 
ing in  law.6  But  for  necessaries  or  other  goods  furnished  to 
the  parent,  or  for  the  parent's  benefit,  at  a  grown  child's  re- 
quest, the  latter  is  chargeable,  as  any  one  else  would  be.6     And 

1  Supra,  ch.  2  ;  2  Kent,  Com.  208 ;  some  would  say,  for  the  sin  of  conjugal 

Dierkes  v.   Philadelphia,  93  Peun.  St.  unfaithfulness. 

270.  4  Rex  v.  Munden,  1  Stra.   190;  Ed- 
s' N.  Y.  Rev.  Sts.  p.  614;  2   Kent,  wards  v.  Davis,  16  Johns.  281;  Dawson 
Com.  208;  and  see  Ex  parte   Hunt,  5  v.  Dawson,  12  Iowa,  512.     See  Johnson 
Cow.  284.  v.  Ballard,  11  Rich.  178. 

8  Kb   one  can   read   "King   Lear"  5  Mills    v.    Wyman,   3    Pick.    207; 

without   recognizing  the  sublimity   of  Cook  v.   Bradley,    7    Conn.   57.      It  is 

an   unquestioning   faith   in  this  moral  otherwise  by  the  Civil  Code  of  Louisi- 

duty.     Kent  (2  Com.  207),  quotes  the  ana,  art.  245. 

speech  of  Euryalus  in  the  iEneid ;  but  6  Lebanon  v.  Griffin,  45  N.  H.  558 ; 

the  instance  of  pins  JEneas  himself  is  Gordon  v.  Dix,  106  Mass.  305;  Becker 

still  stronger,  perhaps  the  strongest  to  v.  Gibson,  70  Ind.  239.     Such  a  claim 

be  found   in  the   classics  ;  devotion  to  might  now  be  enforced,  in  a   suitable 

his   aged  father  rendering   him   more  case,  against  the  separate  estate  of  a 

illustrious    in    song     than    his    heroic  married  daughter,  on  the  usual  princi- 

achievements.  and   largely  atoning,  as  pies  applicable  to  her  contracts. 

423 


§  267  THE   DOMESTIC    RELATIONS.  [PART    III. 

it  is  held,  further,  that  where  one  of  several  children  renders 
support  at  the  request  of  the  others,  they  will  he  liable  on  an 
implied  promise  to  contribute.1  Also  that  the  law  will  not 
imply  a  promise  to  repay  sums  voluntarily  paid  by  one  child  to 
another  for  parental  support.2  So  much,  then,  for  the  duties 
of  children. 

§  266.  Rights  of  Children  in  General.  — The  rights  of  children 
with  reference  to  their  parents  may  be  considered  more  at 
length.  We  have  already  had  occasion  to  observe  that  the 
child  may  to  a  certain  extent  bind  the  parent  as  agent,  not  only 
for  necessaries,  but  in  some  other  transactions,  where  the  child 
acts  within  the  scope  of  authority  properly  conferred.  But 
general  transactions  require  proof  of  actual  authority  ;  and  a 
son  has  ordinarily  no  more  right,  as  such,  to  lend  his  father's 
goods  than  a  stranger.3  And  proof  that  in  one  instance  the 
use,  by  a  son,  of  his  father's  name  upon  negotiable  paper  dis- 
counted at  a  bank,  was  known  and  acquiesced  in  by  the  father, 
is  not  proof  that  the  son  was  authorized  to  sign  subsequent 
notes  in  the  same  manner.4  The  principles  of  agency  are  here 
applied.5  A  child  cannot  recover  on  the  ground  of  relationship 
upon  a  promise  made  for  his  benefit  to  his  parent,  if  the  consid- 
eration came  wholly  from  the  parent.6 

§  267.  The  Emancipation  of  a  Child.  — A  father  may  eman- 
cipate his  young  child  and  thus  give  him  a  right  to  his  own 
earnings.  What,  then,  is  emancipation  as  used  with  reference  to 
the  child?  Plainly,  the  term  "emancipation"  is  borrowed  from 
the  liomau  law,  and  may  be  referred  to  the  old  formality  of 
enfranchisement  by  the  father.  This  in  ancient  times  was  done 
by  an  imaginary  sale,  but  Justinian  substituted  the  simpler 
proceeding  of  manumission  before  a  magistrate.7  In  Louisiana, 
tin;  emancipation  of  minors  is  expressly  recognized  and  regu- 

1  Stune  v.  Stone,  32  Conn.  142.    And  4  Greenfield  Bank  v.  Crafts,  2  Alien, 

gee   Succession  of  Olivier,  18  La.  Ami.  269. 

594;     Marsh    ».    Blackmail,   50    Barb.  6  See  also  Sequin  v.  Peterson,  45  Vt. 

329,  255  ;  supra,  §  253. 

-  Hough  v.  Comstock,  97  Mich.  11.  8  Marston    v.  Bigelow,   150    Mass 

»  Johnson    v.   Stone,  40  N.  II.  197;  45. 
tupra,  .".mi.    But  see  Bennett  v.  Gillett,         '  l?urrill.    Law    Diet,   "Emancipa* 

a  Minn.  423.  tion;"  Bouvier,  lb.;  Inst.  1,12. 

424 


CHAP.  V.]      DUTIES   AND    RIGHTS   OF   CHILDREN.  §  267 

lated  by  law,  and  decrees  of  emancipation  are  judicially  made.1 
At  the  English  law,  the  term  "emancipation"  is  generally  used 
with  reference  to  matters  of  parochial  settlement  and  the  sup- 
port of  paupers.2  But  in  American  cases  it  often  has  a  signifi- 
cance more  nearly  approaching  that  of  the  civil  law  ;  though  we 
are  apt  to  use  the  word  without  much  regard  to  precision. 

We  find  in  the  English  books  little  said  as  to  the  emancipa- 
tion of  minor  children  by  their  fathers.  In  fact,  the  English 
municipal  system  is  so  different  from  ours,  that  the  paternal 
authority  during  the  period  of  minority,  except  as  to  custody, 
gives  rise  to  little  controversy.  But  there  is  a  case  where  an 
infant  was  held  not  to  have  been  emancipated  by  his  enlist- 
ment.3 And  in  this  and  some  other  instances  the  principle  of 
emancipation  was  somewhat  discussed;  and  the  doctrine  has 
been  maintained  by  Lord  Kenyon  and  others,  that  during  the 
minority  of  the  child  he  will  remain,  under  almost  any  circum- 
stances, unemancipated ;  that  in  fact  there  can  be  no  emancipa- 
tion of  an  infant  unless  he  marries,  and  so  becomes  himself  the 
head  of  a  family,  or  contracts  some  other  relation,  so  as  to 
wholly  and  permanently  exclude  the  parental  control.4 

Emancipation  is  not  so  strictly  construed  in  this  country. 
The  American  doctrine,  as  frequently  stated,  is  that  a  father 
may  "  emancipate  "  his  child  for  the  whole  remaining  period  of 
minority,  or  for  a  shorter  term  ;  that  this  emancipation  may  be 
by  an  instrument  in  writing,  by  verbal  agreement  or  license,  or 
by  implication  from  his  conduct ;  and  that  emancipation  is  valid 
against  creditors,  and  to  some  extent  against  the  father.5  This 
doctrine  of  emancipation  is  peculiarly  favored  where  both  the 
child  and  parent  invoke  it  in  order  to  protect  the  minor's  earn- 
ings against  the  unfortunate  parent's  creditors.  Let  us  see  then, 
first,  how  emancipation  may  in  this  country  be  legally  brought 
about ;  second,  what  is  its  legal  effect. 

1  Code,  art.  367  et  serj. ;  Allison  v.  5  Abbott  v.  Converse,  4  Allen,  530, 
Watson,  36  La.  Ann  616.  per  Chapman,  J.;  2   Kent,   Com.   194, 

2  See  7  Q.  B.  574.  n.  n. ;  Whiting  v.  Earle,  3  Pick.  201  ;  Bur- 

3  Rex  v.  Rotherfield  Grays,  1  B.  &  lingame  v.  Burlingame,  7  Cow.  92; 
C.  347.  Varney  v.  Young,  11  Vt.  258;  Rush.  v. 

*  Rex  v.  Roach,  6   T.  R.   247 ;  Rex     Vought,  55  Penn.  St.  437. 
v.  Wilmington,  5  B.  &  Ad.  525. 

425 


§  267  a  THE   DOMESTIC    RELATIONS.  [PART  III. 

§  267  a.  How  a  Minor  Child  is  Emancipated  ;  Parental  Relin- 
quishment of  Right  to  Earnings.  —  And  first,  emancipation  may 
be  either  by  instrument  in  writing  or  by  parol  agreement,  or  it 
may  be  inferred  from  the  conduct  of  the  parent.  As  to  instru- 
ments in  writing,  usually  known  as  indentures,  the  statutes  of 
the  different  States  are  quite  explicit ;  and  the  same  general 
doctrines  apply  to  children  who  are  bound  out  as  to  apprentices 
generally.1  But  such  deeds,  so  far  as  they  derogate  from  the 
child's  personal  independence  and  welfare,  are  not  greatly  fa- 
vored ;  they  are  usually  construed  with  great  strictness  as 
between  the  minor  and  his  parent,  guardian,  or  master ;  and 
the  policy  of  American  law  is  to  require  the  consent  of  the 
child  himself  to  the  instrument,  where  he  has  passed  the  period 
of  nurture.2 

Next,  as  to  emancipation  by  parol  agreement  or  license  of 
the  parent.  In  a  well-considered  Massachusetts  case,  it  is 
decided  that  the  emancipation  of  a  minor  child  by  parol  agree- 
ment and  without  consideration  is  revocable,  until  acted  upon.3 
Yet  there  can  be  little  doubt  at  the  present  day  that  a  father 
can  verbally  sell  or  give  his  minor  son  his  time  ;  and  that  after 
payment  or  performance  the  son  is  entitled  to  his  earnings.4 
A  special  contract  with  a  third  person,  authorizing  him  to  em- 
ploy and  pay  the  child  himself,  will  bind  the  parent,  and  pay- 
ment to  the  child  will  be  a  defence  against  any  action  brought 
by  his  father  against  the  employer.  Parol  agreements  are, 
however,  within  the  statute  of  frauds.5 

Emancipation,  strictly  so  called,  is  not  to  be  presumed  ;  it 
must  be  proved.     It  is  a  question  of  fact  to  be  implied  from  the 


1   l  Com.  Di^.  579;  State  v.  Taylor,  parent  meant  to  relinquish  the  child's 

'_'    Penning.    107  ;    Bolton  v.    Miller,   6  earnings.     Kerwin  v.  Wright,  59  Ind. 

Ind.    262.     Sec    Master  and    Servant,  369. 

infra,  §  457;  Nickerson  v.  Easton,  12  8  Abhott  v.  Converse,  4  Allen,  530. 

Pick,  110.  See  Morris  v.  Low,  4  Stew.  &  Port.  123. 

3  The  minor  child  of  panper  parents  But  see  Chase  v.  Smith,  5  Vt.  556. 

is  nol  emancipated  sons  to  gain  a  set,-  4  Shuto  v,  Dorr,  5  Wend. 204;  Sned- 

fclement  by  the  indenture  of  the  select-  iker  v.  Everingham,  3  Dutch.  143 ;  Gale 

men.     Frankfort  v.  New  Vineyard,  48  v.  Parrott,  l  N.  II.  28;  United  States  v. 

M-     5  i5      Bui  an  indenture  inoperative  Metz,  2  Watts,  406;  Corey  v.  Corey,  19 

the    child    by    reason    of    infor-  Tick.  29. 

ma      pel   afford  proof  that  the  6  Shuto  v.  Dorr,  5  Wend.  204. 

126 


CHAP.  V.]      DUTIES   AND   IIIGHTS   OF   CHILDREN.  §  267  a 

circumstances  and  from  the  conduct  of  the  parties  interested. 
Where  it  appears  that  the  father,  by  parol,  places  his  daughter 
in  a  certain  family,  that  by  the  terms  of  the  agreement  the 
employer  may  turn  her  away  when  dissatisfied,  that  the  father 
may  rescind  the  contract  at  pleasure,  and  reclaim  his  daughter; 
these,  and  similar  circumstances,  may  be  sufficient  to  entitle  the 
child  to  her  own  wages  for  the  time  being,  but  they  cannot  con- 
stitute emancipation  as  against  the  father.1  We  are  to  distin- 
guish, in  fact,  between  a  license  for  the  child  to  go  out  and  work 
temporarily,  and  the  more  positive  renunciation  of  parental  rights, 
Thus,  if  the  father  agrees  to  pay  his  son  so  much  for  every 
day  he  may  labor  for  another,  but  without  intending  to  give 
him  his  time,  and  merely  as  an  incentive  to  industry,  this  is  not 
to  be  construed  into  a  contract  of  emancipation,  but  rather  as  a 
mere  gratuity  to  encourage  the  son  in  the  formation  of  indus- 
trious and  useful  habits.2  But  other  circumstances  may  raise  a 
special  contract  on  the  minor's  behalf,  or  indeed  be  held  to 
emancipate  him  altogether.  It  is  a  well-settled  rule  in  this 
country  that  if  the  parent  absconds,  turns  his  child  out  of  doors, 
or  leaves  him  to  shift  for  himself,  the  son  is  entitled  to  his  own 
wages  ;3  and  our  courts  are  very  liberal  in  allowing  children  to 
avail  themselves  of  any  breach  of  parental  obligation  so  as  to 
earn  an  honest  livelihood  by  their  own  toil.4  The  presumption 
raised  in  such  cases  may  be  termed  a  presumption  of  necessity. 
So  where  the  husband  abandons  his  child  to  the  care  of  the 
mother,  his  subsequent  claims  for  the  earnings  of  either  are  to 
be  regarded  with  very  little  favor.5  Or  where  he  is  able  to  sup- 
port the  child,  and  yet  forces  the  child  to  labor  abroad  unsuit- 
ably to  the  child's  social  position.6     Even  slighter  circumstances, 

1  Sumner  v.  Sebec,  3  Me.  223.  See  gale  v.  Withington,  15  Mass.  275; 
Clark  v.  Fitch,  2  Wend.  459 ;  Clinton  Stanslmry  v.  Bertron,  7  W.  &  S.  362 ; 
v.  York,  26  Me.  167.  Everett  v.  Sherfey,  1   Iowa,  356;   The 

2  Arnold  v.  Norton,  25  Conn.  92.  Etna,    Ware,    462 ;    Gary   v.  James,  4 
s  And  an  insolvent  father  may  give     Desaus.    185;    Conovar    v.    Cooper,   3 

his  son  his  time  and  future  earnings,  so  Barb.  115;  Jeuison  v.  Graves,  2  Blackf. 

as  to   benefit  the  child  as  against  the  440;    Lyon   v.   Boiling.    14   Ala.    753; 

father's  own  creditors.     Atwood  v.  Hoi-  Ream  v.  Watkins,  27  Mo.  516. 
comb,  39  Conn.  270  ;  supra,  §  252.  5  Wodell  v.   Coggeshall,  2   Met.  89. 

4  Clinton  r.  York,  26  Me.  167  ;  Cloud  See  Dennvsville  v.  Trescott,  30  Me.  470. 
v.  Hamilton,  11   Humph.  104;  Nightiu-  6  Farrell  v.  Farrell,  3  Houst.  633. 

427 


§  267  a 


THE   DOMESTIC    RELATIONS. 


[PART   III. 


which  impute  no  misconduct  to  the  father,  but  evince  a  consent 
for  his  son  to  leave  the  parental  roof  and  go  into  the  world  to 
seek  his  own  fortune,  are  often  construed  into  emancipation.1 
But  the  desertion  of  a  minor  from  his  father's  home,  with  va- 
grancy and  crime,  does  not  of  itself  constitute  emancipation.2 
The  father  may  practically  emancipate,  from  a  prudent  regard 
to  his  own  circumstances  and  the  child's  benefit ;  he  may  relin- 
quish all  right  to  his  infant  child's  future  earnings  as  against  his 
own  creditors.3  And  there  may  be  complete  emancipation, 
although  the  minor  continues  to  reside  with  his  father.4  In 
general,  according  to  modern  American  authorities,  a  parent's 
relinquishment,  by  agreement  and  consent,  of  all  claim  to  the 
earnings  of  his  minor  child  in  any  particular  service,  may  be 
implied  from  circumstances,5  and  it  is  a  question  to  be  deter- 
mined by  the  given  circumstances,  and  may  rest  in  parol.  But 
there  is  such  a  thing  as  partial  and  incomplete  emancipation  of 
a  child,  even  though  the  latter  be  allowed  by  the  parent  to  work 
and  control  his  own  earnings.0 


1  Campbell  v.  Campbell,  3  Stockt. 
268;  Johnson  v.  Gibson,  4  E.  D.  Smith, 
231  ;  Dicks  v.  Grissom,  1  Freem.  Ch. 
428;  Dodge  v.  Favor,  15  Gray,  82; 
Boobier  v.  Boobier,  39  Me.  406.  But 
see  Stiles  v.  Granville,  6  Cush.  458. 

2  Bangor  v.  Keadfield,  32  Me.  G6. 

8  Clemens  v.  Brillhart,  17  Neb.  335; 
138  Mass.  249;  39  Conn.  270. 

i  M'Closky  v.  Cyphert,  27  Penn.  St. 
220;  Dierker  v.  Bess,  54  Mo.  246; 
Donegan  v.  Davis,  66  Ala.  3ti2. 

■>  Supra,  §S  -:'-.  -rA  >  Monaghan  v. 
School  District,  38  Wis.  100;  Dierker 
v.  Hess,  54  Mo.  240;  Clay  v.  Shirley, 
65  N.  II-  64 1  Ami  this  doctrine  is 
applied   the  more  strongly  as  against 

;i  parent's  creditors  and  others,  who, 
against  the  will  of  both  parent  and 
child,  maintain  that  the  child's  earn 
ings  are  nol  his  own.  The  proof  should 
be  sufficient  and  clear  as  against  the 
parent  who  denies  such  relinquishment. 
Monaghan    o.  School  District,  38  Wis. 

100.      And     I  e  TJ    Me.  509.      Where  the 

boh  of  one  of  the  partners  was  appren- 

128 


ticed  to  the  firm,  it  was  held  a  question 
for  the  jury  (the  firm  having  assigned 
to  creditors),  whether  the  father  had 
emancipated  his  sou.  Beaver  v.  Bare, 
104  Peuu.  St.  58.  Au  indenture  bind- 
ing out  his  son  so  that  compensation 
shall  he  paid  to  the  son,  does  uot  eman- 
cipate in  such  a  sense  as  to  debar  the 
father  from  suing  the  employer  for 
breach  of  the  covenant ;  at  least  where 
the  son,  having  joined  in  the  indenture, 
docs  not  dissent.  Dickinson  v.  Talmage, 
138  .Mass.  249. 

Remarriage  of  a  widowed  mother, 
whose  new  husband  does  not  assume 
the  paternal  functions  towards  the 
child,  favors  the  idea  of  emancipation. 
Ilollingswortb  v.  Swedenborg,  49  End. 
378.  A  widowed  mother  may  relin- 
quish all  claim.  Lind  v.  Sullestadt,  21 
linn,  364.  But  as  to  a  second  marriage 
affecting  the  child's  pauper  settlement, 
see  Hampden  v.  Troy,  70  Me.  4S4. 

,;  £  268;  79  Iowa,  151;  Tennessee 
Man.  Co.  v.  James,  91  Tenn.  154. 


CHAP.  V.]       DUTIES    AND    RIGHTS    OF   CHILDREN.  §  268 

The  marriage  of  an  infant  with  his  parent's  consent  removes 
him  from  parental  control,  and  gives  him  a  right,  as  against  the 
father,  to  apply  all  his  earnings  to  the  support  of  his  family;1 
but  whether  all  the  consequences  of  legal  emancipation  must 
necessarily  follow  has  been  held  doubtful.  Marriage,  without 
the  consent  of  the  parent,  ought  to  confer  the  same  right  upon 
an  infant,  inasmuch  as  the  claims  of  wife  and  child  in  either 
case  are  paramount,  and  the  consequences  of  all  marriages  are 
much  the  same,  but  in  Maine  it  has  been  decided  otherwise, 
and  that  the  disobedient  infant  is  punishable  by  being  compelled 
to  pay  his  father  his  earnings  ;  though  what  is  to  become  of  the 
wife  meantime  does  not  clearly  appear.2  A  minor  daughter  is 
emancipated  by  her  marriage  with  her  father's  consent ;  and 
here,  at  least,  it  is  ruled  that  his  consent  may  be  inferred  from 
circumstances.3  It  may  well  be  stated,  as  the  later  and  truer 
theory,  that  if  the  infant's  marriage  be  a  legal  and  valid  one, 
though  contracted  in  defiance  of  the  parent's  wishes,  parental 
rights  and  control  must  yield  to  the  new  and  superior  status 
which  the  child  has  thereby  assumed.4 

§  268.  Effect  of  Minor  Child's  Emancipation  or  Relinquish- 
ment. —  Second.  As  to  the  effect  of  emancipation.  The  con- 
sequence is,  on  the  one  hand,  to  give  the  child  the  right  to  his 
own  wages,  the  disposal  of  his  own  time,  and,  in  a  great  meas- 
ure, the  control  of  his  own  person  ;  on  the  other  hand,  to  relieve 
the  parent  of  all  legal  obligation  to  support.5  Moreover,  the 
emancipated  child's  earnings  go  to  his  administrator  upon  his 
decease,  to  be  distributed  according  to  law  ;6  and  it  is  the  child's 
legal  representative  and  not  the  father  who  should  sue  for 
arrears.7     Property  purchased  by  the  emancipated  minor  with 

1  Tannton  v.  Plymouth,  15  Mass.  73;  Sherburne  v.  Hartland,  37  Vt. 
203;    Dicks  v.  Grissom,  1  Freem.  Ch.     528. 

428;  Craftsbury  v.  Greensboro'  (1894),  5  Nightingale    v.     Withington,     15 

Vt.  ;  157  Mass.  73.  Mass.  272;    Corey   v.   Corey,  19   Pick. 

2  White  v.  Henry,  24  Me.  531,  29;  Hollingsworth  v,  Swedenborg,  49 
doubted  by  Field,  C.  J.,  in  157  Mass.  Ind.  378;  Varney  v.  Young,  11  Vt. 
73.     See  Burr  v.  Wilson,  1 8  Tex.  367.  258  ;  Johnson  v.  Gibson,  4  E.  D.  Smith, 

3  Bucksport    v.   Kockland,    56    Me.  231. 

22.  6  Smith  v.  Knowlton,  11  N.  H.  191. 

*  Aldrich  v.  Bennett,  63  N.  H.  415 ;         1  Bell  v.  Bumpus,  63  Mich.  375. 
Commonwealth  t\  Graham,  157  Mass. 

429 


§  268 


THE   DOMESTIC    RELATIONS. 


[PART   III. 


his  own  means,  too,  is  undoubtedly  bis  own,  and  not  subject  to 
the  parent's  control  or  disposal.1 

A  father  may  give  to  his  son  a  part  instead  of  the  whole 
period  of  his  minority,  in  which  case  the  rights  of  the  latter 
are  limited  accordingly,  and  the  parental  control  and  duties 
are  still  upheld.2  If  the  father  receives  his  son's  earnings 
after  giving  the  son  his  time,  it  will  be  a  good  consideration 
for  any  promise  from  the  father.3  And  he  cannot  sue  for  the 
services  of  such  son  performed  within  the  period  embraced 
by  the  agreement,  although  he  has  given  notice  to  the  party 
employing  the  son  not  to  pay  his  wages  to  him.4  Still  less  can 
the  father's  creditors  attach  such  earnings,  or  property  which 
was  purchased  therewith  for  the  infant's  benefit.3  But  the 
child  sues  in  such  case  for  his  own  wages.6  And  if  he  is  actu- 
ally emancipated  by  his  father,  and  an  express  promise  is  made 
to  pay  him  for  his  labor,  with  the  consent  of  his  father,  no  other 
notice  of  his  emancipation  is  necessary  to  charge  the  defendant 
and  enable  the  minor  to  sue.7  All  this  presupposes  that  the 
father  has  bona  fide  emancipated  the  child,  and  does  not  support 
and  claim  earnings  and  services  for  himself  in  fraud  of  his  own 
creditors.8     In  brief,  the  minor  who  is  released  from  his  father's 


1  6  Mont.  243 ;  §  255. 

2  Tillotson  v.  M'Crillis,  11  Vt.  477. 
And  see  79  Iowa,  151  ;  Winn  v.  Sprague, 
35  Vt.  243 ;  supra,  §  252 ;  91  Tenn. 
154. 

8  Jenney  v.  Alden,  12  Mass.  375. 

*  Morse  v.  Welton,  6  Conn.  547  ; 
Wodell  v.  Coggeshall,  2  Met.  89 ;  Bray 
v.  Wheeler,  29  Vt.  514. 

6  Chase  v.  F.lkins,  2  Vt.  290 ;  Weeks 
v.  Leighton,  5  N.  H.  343  ;  M'Closkey  v. 
Cyphert,  27  Penn.  St.  220;  Bobo  o. 
Bryson,  21  Ark.  387  ;  Lord  v.  Poor,  23 
Me.  569;  Lyon  v.  Boiling.  14  Ala.  753; 
Johnson  >■.  Silsbee,  49  N.  H.  543  ;  Dier- 
kfr  v.  Urns,  54  Mo.  24  f. ;  98  Mo.  247; 
I.iii.l  v.  Sullestadt,  21  Hun,  364.  As  to 
an  infants  suits,  see  post,  Part  V.  c.  6. 
And  see  Benzigei  v.  Miller,  50  Ala. 
206.  Recovery  by  the  son  in  a  -nit. 
will  bar  an  art  ion  by  the  father. 
Scott  v.  White,  71  111.  287. 

430 


6  Ream  v.  Watkins,  27  Mo.  516. 

7  Wood  v.  Corcoran,  1  Allen,  405. 
The  earnings  of  an  emancipated  child 
cannot  he  attached  by  trustee  process 
for  the  father's  debts.  Manchester  v. 
Smith,  12  Pick.  113.  And  see  Bray  v. 
Wheeler,  29  Vt.  514. 

The  father  cannot  retract  his  con- 
sent that  the  child  shall  have  his  own 
wages,  after  the  wages  are  earned.  Tor- 
rens  v  Campbell,  74  Penn.  St.  470. 

8  89  Ala.  619.  Cf.  148  Mass.  550. 
But  an  insolvent  father's  emancipation 
of  his  child  is  not  unfavorably  regarded. 
37  W.  Va.  242.  Even  though  the  child 
should  then  work  for  his  mother.  Ih. 
Emancipation  may  occur,  upon  the  di- 
vorce of  parents,  so  far  as  the  father  is 
concerned,  so  as  to  give  the  child  the 
right  to  help  support  the  mother  and  to 
sue  strangers  for  his  services  in  doing 
so.     Grimm  v.  Taylor,  96  Mich-  5. 


CHAP.  V.]       DUTIES   AND   RIGHTS   OF   CHILDREN.  §  269 

service  stands,  as  to  his  contracts  for  labor  either  with  strangers 
or  with  him,  upon  the  same  footing  as  if  he  had  arrived  ut  lull 
age;  and  such  being  the  case,  the  father  may  himself  contract 
to  employ  and  pay  the  child  for  his  services,  and  be  bound  in 
consequence  like  any  stranger  to  fulfil  his  agreement.1 

§  269.  Rights  of  Full-grown  Children.  — A  child,  on  arriving 
at  full  age,  becomes  emancipated.2  But  whether  son  or  daugh- 
ter, the  child,  by  continuing  with  the  parent  and  living  at  the 
same  home,  may  still  be  legally  in  the  service  of  the  parent. 
On  this  point  there  is  no  dispute  ;  but  in  settling  the  presump- 
tions of  law  there  is  apparently  some  conflict  of  authorities. 
Thus,  where  the  parent  sues  for  loss  of  services  because  of  the 
seduction  of  a  grown-up  or  minor  daughter,  a  strong  disposition 
is  frequently  manifested  to  rule  against  complete  emancipation 
so  as  to  give  damages.  Where,  however,  the  conflict  is  between 
parent  and  an  adult  child,  over  work  done  for  a  stranger,  the 
tendency  is  in  favor  of  complete  emancipation,  and  to  allow  the 
child,  attained  to  full  age,  the  right  to  control  his  own  wages  ; 
this  being  for  the  child's  benefit.  So,  too,  a  parent  is  not  liable 
to  third  parties  for  the  board  or  necessaries  of  his  adult  chil- 
dren, in  the  absence  of  an  express  promise,  or  of  facts  from 
which  an  implied  promise  may  be  inferred  ; 3  while  as  between 
a  parent  and  his  own  adult  children,  unless  peculiar  circum- 
stances have  arisen,  courts  are  reluctant  to  infer  a  pecuniary 
recompense  from  the  performance  of  filial  or  parental  duties 
such  as  humanity  enjoins.4 

If  a  child,  then,  after  arriving  at  the  age  of  twenty-one  years, 
continues  to  live,  labor,  and  render  service  in  the  father's  family, 
with  his  knowledge  and  consent,  but  without  any  agreement  or 
understanding  as  to  compensation,  the  law  raises  no  presump- 

1  Steel  v.  Steel,  12  Penn.  St.  64;  3  Hawkins  v.  Hyde,  55  Vt.  55. 
Hall  v.  Hall,  44  N.  H.  293 ;  Wright  v.  4  Zimmerman  v.  Zimmerman,  129 
Dean,  79  Ind.  407  ;  131  N.  Y.  300.  An  Penn.  St.  229  ;  Switzer  v.  Ker,  146  111 
emancipated  child  ceases  to  follow  the  577 ;  §  274,  post.  Such  contracts  are 
settlement  of  his  father.  Orneville  v.  strictly  personal,  and  no  specific  per- 
Glenburn,  70  Me.  353.  Cf.  North  Yar-  formance  lies  against  the  personal  rep- 
mouth  v.  Portland,  73  Me.  108.  resentatives  of  one  deceased.    Campbell 

2  2    Kent,    Com.    206 ;    Poultney  v.  v.  Potter,  147  111.  576. 
Glover,  23  Vt.  328 ;  Hardwick  v.  Paulet, 

36  Vt.  320  ;  supra,  §  252. 

431 


§  269 


THE   DOMESTIC   RELATIONS.  [PART   III. 


tion  of  a  promise  to  enable  the  child  to  maintain  an  action 
against  the  father  to  recover  compensation.1  The  presumption 
here  is,  that  the  parties  do  not  contemplate  a  payment  of  wages 
for  services,  on  the  one  hand,  nor  a  claim  for  board  and  lodging, 
on  the  other.  For  where  the  relation  of  parent  and  child 
exists,  the  law  will  not  readily  assume  that  of  debtor  and  cred- 
itor likewise  ;  and  board  and  services  may  constitute  a  fair 
mutual  offset  in  the  general  household.  But  this  presumption 
may  be  overthrown,  and  the  reverse  established,  by  proof  of  an 
express  or  implied  contract  to  that  effect ;  an  implied  contract 
being  proven  by  facts  and  circumstances  which  show  that  both 
parties,  at  the  time  the  services  were  performed,  contemplated 
or  intended  pecuniary  recompense.2  If  an  express  contract  by 
the  parent  to  pay  for  the  child's  services  be  thus  shown,  but  not 
the  rate  of  compensation,  a  recovery  may  be  had  upon  a  quan- 
tum, meruit  for  what  these  services  were  fairly  worth.3  That 
valid  contracts  of  this  kind  between  parent  and  adult  child  can 
be  made  is  unquestionable.4  The  declarations  of  parents  in 
matters  of  this  sort,  if  somewhat  vague,  are  not  apt  to  be  con- 
strued in  the  child's  favor.     And,  on  the  other  hand,  the  pre- 


1  Dye  v.  Kerr,  15  Barb.  444  ;  Lipe  v. 
Eisenlerd,  32  N.  Y.  229;  Mosteller's 
Appeal,  30  Penn.  St.  473  ;  Ridgway  v. 
English,  2  N.  J.  409 ;  Andover  v.  Merri- 
mack County,  37  N.  H.  437  ;  Williams 
v.  Barnes,  3  Dev.  348;  Priekett  v. 
Prickett,  5  C.  E.  Green,  478;  Perry  v. 
Perry,  2  Duv.  (Ky.)  312;  Hey  wood  v. 
Brooks,  47  N.  H.  231;  Wilson  v.  Wil- 
son, 52  Iowa.  44  ;  Gardner  v.  Sehooley, 
25  N.  J.  Eq.  150;  Guffiu  v.  First 'Nat. 
Bank;  74  111.259;  Pellage  v.  Pellage, 
82  Wis.  13G  ;   92  Ky.  556. 

Whether  a  father  is  liable  for  ne- 
cessaries  (''.  '/.,  medical  treatment)  fur- 
d  to  his  adult  daughter  at  her 
request  while  she  is  a  member  of  his 
family,  and  the  extent  of  her  agency, 
see  Blachley  v.  Laba,  63  Iowa,  22.  At 
common  law  a  father  is  not.  liable  for 
furnished   an    adult   child, 

BVen  I  hough  the  child  he  at  the  father's 

home  when    the    necessaries    are  fur- 
nished j    unless    at    least    >*    suitable 
432 


agency  to  hind  him  be  shown.  lb. ; 
Crane  v.  Baudoine,  55  N.  Y.  256  ;  Mills 
v.  Wyraan,  3  Pick.  207  ;  Boyd  v.  Sap- 
pington,  4  Watts,  247  ;  §  241. 

a  Miller  v.  Miller,  16  111.  296  ;  Fitch 
v.  Peckham,  16  Vt.  150;  Hart  v.  Hart, 
41  Mo.  441  ;  Updike  v.  Ten  Broeck,  3 
Vroom,  105  ;  Freeman  v.  Freeman,  65 
111.  106;  Van  Schovck  v.  Backus,  16 
N.  Y.  Supr.  68 ;  Hilbish  v.  Hilbish,  71 
Ind.  27  ;  Steel  w.  Steel,  12  Penn.  St.  66 ; 
Kurtz  v.  Hilmer,  55  111.  514;  Youug  v. 
Herman,  97  N.  C.  280.  See  Reando  v. 
Misplay,  90  Mo  251,  where  the  parent 
was  insane.  The  law  implied  here  a 
contract  by  the  insane  person  to  pay 
for  necessaries.  See  Tremont  v.  Mount 
Desert,  36  Me.  390 ;  Leidig  v.  Coover's 
Ex'rs,  47  Penn.  St.  534.  But  see  Put- 
nam v.  Town,  34  Vt.  429 

3  Byrnes  v.  Clark,  57  Wis.  13  ;  Frier- 
muth  v.  Friermuth,  46  Cal.  42 ;  8  Cat 
118. 

4  Ulrich  v.  Ulrich,  136  N.  Y.  120. 


CHAP.  V.]       DUTIES   AND    RIGHTS   OF   CHILDREN.  §  270 

sumption  is  equally  against  regarding  the  services  of  a  father 
who  lives  with  his  son,  and  does  work  for  him,  as  rendered  for 
compensation  ;  although  here,  too,  the  reverse  might  be  estab- 
lished by  evidence  of  a  contract.1  Circumstances  which  show 
an  unusual  burden  assumed  by  the  son,  or  special  advantages 
reaped  by  the  father,  are  sometimes  favorably  construed  in  the 
child's  favor.  As  where  a  grown-up  son  purchases  his  father's 
farm  and  continues  to  support  the  father  and  an  adult  idiot 
brother  upon  it.2  So  where  the  adult  son  assumes  entire  con- 
trol and  management  of  the  business,  works  the  farm,  and  adds 
largely  to  the  family  profits  by  his  extraordinary  skill.3  So 
where  he  works  in  his  father's  general  business.4  So  where  the 
son  takes  a  deed  of  the  farm  on  his  agreement  to  support  his 
parents  there  for  the  rest  of  their  lives.5  Such  cases  are  by  no 
means  uncommon  among  the  enterprising  settlers  of  our  Western 
country,  who  cultivate  the  soil  and  live  in  little  colonies;  and 
American  courts  cannot  be  insensible  to  the  merits  of  young 
persons  who  adorn  the  filial  relation.  As  to  use  and  occupation 
of  real  estate,  where  the  occupant  is  the  son  of  the  owner,  it  is 
held  that  while  payment  of  rent  may  be  presumed,  slight  evi- 
dence is  sufficient  to  show  the  contrary.6  But  the  rule  in  some 
of  the  older  States  is  rather  strict  as  against  inferring  that  either 
support  or  service  can  create  a  debt.7  In  all  cases  of  this  kind 
some  distinct  understanding  is  always  desirable.8 

§  270.  Gifts,  &c,  and  Transactions  between  Parent  and  Child. 
—  Gifts  between  members  of  the  same  family  are  not  greatly  to 
be  favored  ;  and  as  to  the  father's  alleged  gift  to  his  child,  the 

1  Harris  v.  Currier,  44  Vt.  468.  As   to   stepchildren,   grandchildren, 

2  House  v.  House,  6  Ind.  60.  and  others  standing  iu  a  quasi  filial  re- 

3  Adams  i'.  Adams,  23  Ind.  50.  And  latiou,  similar  considerations  will  ap- 
see  Fisher  v.  Fisher,  5  Wis.  472.  ply.     §  273  ;    Broderick   v.  Broderick, 

4  Second  Nat.  Bank  v.  Merrill,  81  28  W.  Va.  378 ;  Dodson  v.  McAdams, 
Wis.  142.  96  N.  C.  149. 

5  Pratt  v.  Pratt,  42  Mich.  174;  Brown  8  Upon  the  marriage  of  a  daughter, 
v.  Knapp,  79  N.  Y.  136.  all  obligation  of  her  parents  for  support 

6  See  Oakes  v.  Oakes,  16  111.  106;  ceases;  yet  there  is  no  presumption  of 
Hays  v.  Seward,  24  Ind.  352.  And  see  liability  for  her  support  if  she  continues 
Whipple  v.  Dow,  2  Mass.  415.  in  the  parental  abode.     3  Col.  App.  338. 

7  Davis  v.  Goodenow,  27  Vt.  717;  There  ought  to  be  a  distinct  understand- 
Seavev   v.  Seavev,   37   N.  H.   125;    96  ing  shown. 

N.  C.'l49. 

28  433 


§  270  THE   DOMESTIC   RELATIONS.  [PART   III, 

presumption  must  be  strongly  in  favor  of  the  father's  continued 
possession  as  head  of  the  family.  Yet  where  there  is  sufficient 
proof  of  a  gift  from  father  to  child,  fully  executed  by  delivery, 
it  will  be  upheld  as  irrevocable.1  Such  a  gift  should  be  per- 
fected in  order  to  be  sustained  afterwards  against  him,  and  if 
by  parol  it  should  be  direct,  positive,  and  clear.  The  parent's 
promise  to  give  cannot  be  enforced  on  the  child's  behalf,  against 
him  or  his  estate,  on  a  mere  consideration  of  love  and  affection. 
But  the  parent  in  equity  may  settle  property  on  his  children  as 
well  as  his  wife,  upon  principles  elsewhere  discussed.2  And  if 
a  valuable  consideration  be  interposed,  the  settlement  is  sup- 
ported more  firmly ;  and  specific  performance  of  an  executory 
promise  to  transfer  may  be  in  some  instances  decreed.3 

On  the  other  hand,  while  an  adult  child  may  make  a  bind- 
ing transfer  or  conveyance  of  property  to  the  parent,  any  such 
transfer  by  way  of  gift  or  improvident  contract,  made  just  after 
attaining  majority,  or  while  in  general  under  undue  parental 
control  and  influence,  will  be  jealously  regarded  by  courts  of 
equity.4  The  same  doctrine  holds  true  of  a  transfer  or  convey- 
ance to  an  adult  child,  tainted  with  undue  influence  over  an 
aged  or  infirm  parent.  All  family  arrangements  of  the  filial  kind, 
whether  child  or  parent  be  the  weaker  party,  should,  in  order  to 
stand  firmly,  be  free  from  fraud  or  undue  influence  on  either  side, 
and  made  in  good  faith ;  or  equity  will  readily  set  them  aside.5 

1  Kellogg  v.  Adams,  51  Wis.  138.  *  Snjrra,  Part  II.  c.  14. 
Ordinarily  a  beneficial  deed  of  real  3  As  where  a  writing  declared  a 
estate,  taken  by  the  father  in  the  name  valuable  consideration  for  the  promise 
of  bis  child,  is  presumed  to  be  a  gift  to  to  convey  land,  and  actrtal  entry  and 
t!ic  child.  Francis  v.  Wilkinson,  147  improvement  had  taken  place  upon  the 
[11.370.  Even  though  the  father  keeps  faith  of  the  contract.  1 1  agar  v.  Hagar, 
possession  of  the  deed.  141  111.400;  71  Mo.  610.  And  see  Haitt  v.  Williams, 
'.)]  Tenn.  147.  And  if  the  deed  reserves  72  Mo  214;  Kurtz  v.  Hibiier,  55  111. 
ress  rights  to  the  parents,  and  is  514.  As  to  raising  an  equity  by  reason 
recorded,  this  presumption  becomes  the  of  a  meritorious,  but  not  valuable  con- 
stronger.  Compton  v.  White,  86  Mich,  sideration,  for  enforcing  an  incomplete 
.'!.'i.  But  with  M')  apparent  intent  to  de-  gift,  see  50  N.  J.  Eq.  500. 
liver  and  no  record,  the  case  may  be  *  See  Guardian  and  Ward, jiost, Part 
92  Tenn.  578.  Sec  also  IV.  c.  9. 
I  ,-.  Mc  A  tee,  156  Penn.  St.  600;  6  Taylor  v.  Staples,  8  R.I.  170  ;  Van 
Harrison  v.  Harrison,  86  W.  \'a.  556.  Donge  v.  Van  Donge,  23  Mich.  321; 
A  note  given  by  flic    father  tO  the  child  Rider  V.  Kelso,  53  Iowa,  307  ;    Miller  v. 

may  be  ihown  to  be  a  ■vit.    92  Ky.  556.    Simonda,  72  Mo.  669;  Jacox  v.  Jacox, 
484 


CHAP.  V.]       DUTIES    AND    RIGHTS    OF   CHILDREN.  §  270 

To  support,  however,  a  general  contract  between  a  parent  and 
his  adult  child,  as  against  strangers,  a  slight  consideration  is 
often  held  sufficient.  And  a  deed  of  personal  property  from 
parent  to  child,  the  parent  not  being  indebted  at  the  time,  by 
which  it  is  agreed  that  the  parent  shall  keep  possession  during 
life,  is  not  considered  void.1  So  it  is  held  that  a  bond  executed 
by  a  son  to  his  parent  for  $500,  with  interest  semi-annually  if 
demanded,  is  upon  valuable  consideration,  sufficient  to  sustain  a 
conveyance  of  land  as  a  purchase.2  And  even  a  deed  of  land 
from  a  parent  to  a  child  for  the  consideration  of  love  and  affec- 
tion is  not  absolutely  void  as  against  creditors.  The  want  of  a 
valuable  consideration  may  be  a  badge  of  fraud ;  but  if  so,  it  is 
only  presumptive,  not  conclusive,  evidence  of  it,  and  may  be  met 
and  rebutted  by  opposing  evidence.3  This  is  the  American  rule; 
though,  as  we  have  seen,  the  statutes  of  Elizabeth  with  reference 
to  voluntary  settlements  do  not  receive  a  uniform  interpretation 
in  our  State  courts.  There  are  doubtless  circumstances  under 
which  a  father's  voluntary  settlement,  whether  upon  minor  or 
adult  children,  would  be  set  aside  as  a  fraud  upon  subsequent 
and  still  more  upon  existing  creditors.* 

Where  a  son  purchases  and  stocks  a  farm  as  a  home  for  an 
indigent  father,  who  resides  and  labors  thereon,  the  products 
are  not  subject  to  attachment  as  the  son's  property.5  On  the 
other  hand,  where  a  parent  permits  the  child  to  receive  and  in- 

40  Mich.  473 ;  Mackall  v.  Mackall,  135  rick,  54  111.  269 ;  Gardner  v.  Sehooley, 

U.  S.  167.     Cf.  147  111.  370.  25  N.  J.  Eq.  150;  Guffin   v.   First   Nat. 

1  Bohn  v.  Headley,  7  Har.  &  J.  257  ;  Bank,  74  111.  259.  No  express  contract 
Shepherd  v.  Bevin,  9  Gill,  32.  ueed  be  proved  to  enable  a  son  to  re- 

2  Jackson  v.  Peek,  4  Wend.  300.  cover   from   his    father's   estate   for   a 

3  Hinde's  Lessee  v.  Longworth,  11  house  built  by  the  son  on  the  father's 
Wheat.  213  ;  Seward  v.  Jackson,  8  land  in  the  lifetime  of  the  latter  with 
Cow.  406  ;  Haines  v.  Haines,  6  Md.  435  ;  the  latter's  knowledge  and  consent. 
Kain  v.  Larkin,  131  N.  Y.  300 ;  Lord  v-  Byers  v.  Thompson,  66  111.  421  ;  Kurtz 
Locke,  62  N.  H.  566.  A  father  may  serve  v.  Hibner,  55  111.  514;  Hillebrands  v. 
gratuitously  as  trustee  or  guardian  for  Nibbelink,  44  Mich.  413.  Listing  the 
his  child,  and  his  creditors  cannot  com-  father's  personal  property  for  taxation 
pel  him  to  charge  the  trust  for  their  in  the  son's  name  affords  no  presump- 
benefit.     88  Ky.  242.  tion  of  a  gift  which  may  not  be  disputed 

4  See  supra,  §§   185-188.     And  see  by  evidence.     85  Va.  252. 
Carter  v.  Grimshaw,  49  N.  H.  100  ;  Wil-  5  Brown  v.  Scott,  7  Vt.  57. 
son  v.  Kohlheim,  46  Miss  346  ;  Kaye  v 

Crawford,  22  Wis.  320;  Monell  v.  Scher- 

435 


§  271  THE   DOMESTIC   RELATIONS.  [PART   III. 

vest  his  earnings,  the  benefit  of  the  investment  belongs  to  the 
child,  especially  as  against  creditors  of  the  father.1  And  in 
some  States,  a  minor  child  who  improves  and  settles  a  tract  of 
land  with  the  father's  permission  may  acquire  a  title  by  making 
valuable  improvements  as  effectually  as  if  he  were  of  age.2 

§  271.  Same  Subject;  English  Cases.  — The  English  cases  are 
few  as  to  transactions  strictly  between  parent  and  child  ;  and 
these  turn  chiefly  upon  trusts  and  family  settlements.  There 
are  recent  cases  where  the  transactions  of  children  with  for- 
tunes have  been  set  aside  in  equity,  for  undue  influence  exerted 
over  them  by  their  parents.  Thus  a  mortgage  and  subsequent 
sale  by  a  son  just  arrived  at  full  age,  effected  under  the  father's 
influence,  and  to  his  own  injury,  has  been  annulled.3  So  with 
a  gift  from  child  to  parent,  though  not  unless  a  suit  to  set  the 
gift  aside  be  instituted  in  due  time.4  The  principle  of  equity 
is,  that  if  there  be  a  pecuniary  transaction  between  parent  and 
child,  just  after  the  child  attains  the  age  of  twenty- one  years, 
and  prior  to  what  may  be  called  a  complete  emancipation,  with- 
out any  benefit  moving  to  the  child,  the  presumption  is,  that  an 
undue  influence  has  been  exercised  to  procure  that  liability  on 
the  part  of  the  child ;  and  that  it  is  the  business  and  the  duty 
of  the  party  who  endeavors  to  maintain  such  a  transaction,  to 
show  that  such  presumption  is  adequately  rebutted  ;  but  that 
the  presumption  may  always  be  removed.5  On  the  other  hand, 
in  transactions  between  members  of  the  same  family,  even  though 
that  relation  subsists  between  them,  from  whence  the  court  will 
infer  the  moral  certainty  of  the  existence  of  considerable  influ- 
ence, and  the  probability  of  its  having  been  exercised,  yet  if  the 
transaction  be  one  that  tends  to  the  peace  or  security  of  the 
family,  to  the  avoiding  of  family  disputes  and  litigation,  or  to 

1  Campbell  v.  Campbell,  3   Stockt.  4  Wright  v.  Vanderplank,  39  E.  L. 

268;    Stovall    v.  Johnson,   17   Ala.   14;  Sb  Eq.   147;  Turner  v.  Collins,  I,.  II.  7 

,  v.  McMillan,  62  Ga.  16;  §  268.  Ch.  329. 

-  Galbraith  v.  Black,  4  S.  &  R.  207.  G  Archer  v.   Hudson,  7  Beav.   551, 

Bee  Jenison  >■.  Graves,  '2  Blackf.  441.  per  Lord  Langdale.    See  Houghton  v. 

Bat    see    Bell   v.  Hallenback,    Wright,  Honghton,  11  E.  L.  &  Eq.  134;  s.  c.  15 

7.') i  ;  Fonda  v.  Van   Home,   15   Wend.  Beav.  278,  where  this  snbject  is  fully 

631  ;  Brownw.  M'Donald,  1  Hill, Ch. 297.  discussed.     See  also  American  case  of 

i  ...  v.  King,  35  E.  L.  &  Eq.  100.  Bergen  v.  Udall,  31  Barb.  9. 
er  v.  Bradley,  lb.  449. 

i.;t;  ' 


CHAP.  V.]      DUTIES   AND   RIGHTS   OF   CHILDREN. 


§  272 


the  preservation  of  the  family  property,  the  principles  by  which 
such  transactions  must  be  tried  are  not  those  applicable  to  deal- 
ings between  strangers,  but  such  as  on  the  most  comprehensive 
experience  have  been  found  to  be  most  for  the  interest  of  families.1 

§  272.  Advancements  and  Distributive  Shares  ;  Expectancies 
of  Heirs.  —  If  the  father,  during  his  lifetime,  makes  an  advance- 
ment to  any  of  his  children,  towards  their  distributive  share  in 
his  estate,  the  rule  is  to  reckon  this  in  making  the  distribution.2 
In  England  it  would  appear  that  acts  of  the  father  have  often 
been  so  construed,  under  the  statute  of  distributions,  with  less 
reference  to  intention  of  the  parties  than  the  requirements  of 
equal  justice.  Thus  annuities  are  reckoned  an  advancement ; 
contingent  provisions;  large  premiums  for  a  trade  or  profes- 
sion; and  loans  of  considerable  importance  to  a  son.3  But 
small  and  inconsiderable  sums  for  current  expenses,  ornaments, 
and  the  education  of  children  are  not  so  reckoned.4  Xor  is  the 
payment  to  the  daughter's  husband  of  £1,000,  jocularly  stated 
by  the  father  to  be  in  exchange  for  his  snuff-box,  to  be  consid- 
ered an  advancement  to  the  daughter.5 

The  rule  in  this  country  does  not  appear  to  be  very  strict ; 


1  Master  of  Rolls  in  Houghton  v. 
Houghton,  supra, 

An  imbecile  father  living  with  his 
grown  children  may  have  a  notice  to 
quit  served  by  delivery  to  one  of  them 
in  such  a  manner  as  to  entitle  the  land- 
lord to  maintain  ejectment  against  the 
father,  to  whom  the  notice  had  been 
addressed.  Tanham  v.  Nicholson,  L. 
R.  5  H.  L.  561.  Mortgage  by  eman- 
cipated children  over  age,  to  secure  a 
debt  of  their  father,  upheld  in  favor  of 
the  mortgagee,  but  not  in  favor  of  the 
father.  Bainbridge  v.  Brown,  50  L.  J. 
Ch.  522. 

2  Schooler,  Executors,  §§  499,  500 ; 
Edwards  v.  Freeman,  2  P.  Wins.  435. 
And  so  is  it  with  one  standing  in  loco 
parentis. 

3  Smith  v.  Smith,  3  Gif.  263 ;  2 
Wms.  Ex'rs,  1385;  Edward  v.  Free- 
man, 2  P.  Wms.  435 ;  Boyd  v.  Boyd, 
L.  R.  4  Eq.  305. 

4  2  Wins.  Ex'rs,  6th  Am.  ed.  1498- 


1505.      And   see   Miller's    Appeal,  40 
Penn.  St.  57. 

6  McClure  v.  Evans,  29  Beav.  422. 
And  see  Stock  v.  McAvoy,  L.  R.  15 
Eq.  55. 

In  a  modern  English  case  a  father 
lent  the  sum  of  £10,000  to  his  son,  to 
assist  him  in  forming  a  partnership  in 
the  business  of  a  sugar-refiner,  and 
took  his  promissory  note  for  the  re- 
payment of  that  sum  on  demand.  It 
appeared  that  the  son  engaged  in  busi- 
ness at  the  urgent  desire  of  his  father  ; 
that  finding  it  was  a  losing  concern  he 
became  desirous  of  retiring,  but  re- 
mained at  the  urgent  request  of  his 
father  and  continued  the  business  with 
reluctance,  sustaining  heavy  losses. 
The  father  on  his  death-bed  caused  the 
promissory  note  to  be  burned,  and  died 
intestate.  It  was  held  that  although 
the  circumstances  under  which  the  note 
had  been  destroyed  amounted  to  an 
equitable  release  of  the  debt ;  vet  that 

437 


272 


THE   DOMESTIC    RELATIONS.  [PART   III. 


and  in  some  States  the  statutes  of  distributions,  unlike  those  of 
England,  permit  nothing  to  be  reckoned  as  an  advancement  to  a 
child  by  the  father,  unless  proved  to  have  been  so  intended  and 
chargeable  on  the  child's  share  by  certain  evidence  prescribed.1 
And  it  is  laid  down  that  whether  a  provision  of  the  deceased  in 
his  lifetime  be  a  gift  or  an  advancement  is  a  question  of  inten- 
tion ;  but  that  if  it  was  originally  intended  by  both  as  a  gift,  it 
cannot  subsequently  be  treated  by  the  father  as  an  advancement, 
at  least  without  the  son's  knowledge  or  consent,2  nor  set  off  as  an 
advancement  to  the  son  in  settling  the  father's  estate.3  Yet  it 
is  also  ruled  that  if  a  son  during  his  father's  life  receipts  for  and 
actually  receives  his  "  full  proportion,"  he  can  claim  nothing- 
more  from  the  estate  after  his  father's  death.4  Advancements 
do  not  bear  interest,  unless,  at  all  events,  the  intention  to  that 
effect  be  very  clear.5 


the  sum  which  remained  due  on  it  must 
be  considered  an  advancement  to  the 
son.  Gilbert  v.  Wetherell,  2  Sim.  & 
Stu.  254,  per  Sir  John  Leach,  M.  R. 
But  see  Auster  v.  Powell,  31  Beav.  583, 
and  n.  And  see  Bennett  v.  Bennett, 
L.  R    10  Ch.  D.  474. 

1  Osgood  v.  Breed's  Heirs,  17  Mass. 
356.  Mere  declarations  of  a  father  held 
insufficient  to  raise  a  presumption  of  his 
intention  to  treat  money  paid  to  his 
son  for  which  he  had  taken  the  hit- 
ter's notes  as  advancements.  Harley  v. 
Harley,  57  Md.  340. 

2  Lawson's  Appeal,  23  Penn.  St. 
85;  Sherwood  v.  Smith,  23  Conn.  516. 
See   Black  v.  Whitall,  1   Stockt.  572; 

'a  Appeal,  83  Penn.  St.  89. 
8  Tburber  v.  Sprague,   17  R.  I.  634. 
The  suggestion  that  an  unequal  distri- 
bution among  children  results,  will  not 
avail.     lb.,    132   111.  3S5.     And  see   147 
D1.370.     Butcf.  Culpu.  Wilson,  133  Ind. 
294.     Aa  to  insurance  on  his  own  lift; 
for  the  child's  benefit,  sec  92  Tonii.  573. 
1  Cushing  /•.  Cushing,  7  Hush,  259, 
r>  Osgood  v.  Breed's  Heirs,  17  Mass. 
n    v.    U'van,    21     .Mo.    3  17  : 
Porter's   Appeal,  94   Penn.  St.  232.     A 
,.  tion   between   parent  and   child 
ii i <    :i    loan    rather   than 

438 


either  gift  or  advancement.  Bruce  v. 
Griscom,  1 6  N.  Y.  Supr.  280 ;  29  Beav. 
422.  As  where  the  parties  habitually 
keep  memoranda  to  this  effect,  67  Miss. 
413.  As  to  proof  of  au  advancement, 
see  Bulkley  v.  Noble,  2  Pick.  337  ;  and 
see  Hartwell  v.  Rice,  1  Gray,  587  ;  Mil- 
ler's Appeal,  40  Penn.  St.  57  ;  Smith  v. 
Smith,  59  Me.  214;  Vanzant  v.  Oavies, 
6  Ohio  St.  52;  2  Story,  Eq.  Juris. 
§  1202;  Brown  v.  Burk,  22  Ga.  574; 
Cleaver  v.  Kirk,  3  Met.  (Ky.)  270; 
Hodgson  v.  Macy,  8  Ind.  121  ;  Vaden 
».  Hance,  1  Head,  300  ;  Fulton  v.  Smith, 
27  Ga.  413;  Montgomery  v.  Chaney, 
13  La.  Ann.  207.  A  conveyance  of 
land  to  the  husband  of  a  daughter  is 
not  an  advancement  to  the  daughter. 
I  Jains  v.  Hays,  6  Loa.  303  But  whore 
an  adult  child  accepts  a  deed  which  ex- 
plicitly declares  that  it  is  accepted  by 
said  child  "as  his  full  and  entire  share 
of  his  father's  estate,"  and  the  child 
puts  the  deed  on  record,  enters  into 
possession,  and  enjoys  the  property 
thus  conveyed,  he  cannot  deny  the 
deed  to  be  binding  upon  him  to  that 
effect.  Kershaw  v.  Kershaw,  102  111. 
307;  Roberts  V.  Coleman,  .".7  W.  Va 
143.     See  further,  2  Schouler,  Wills. 


CHAP.  V.]      DUTIES    AND    RIGHTS   OF   CHILDREN.  §  272 

Where  the  child  of  a  father  dying  intestate  has  received  an 
advancement,  in  real  or  personal  estate,  and  wishes  to  come 
into  the  general  partition  or  distribution  of  the  estate,  he  may 
bring  his  advancement  into  hotchpot  with  the  whole  estate  of 
the  intestate,  real  and  personal ;  and  shall  thereupon  be  entitled 
to  his  just  proportion  of  the  estate.  This  is  the  English  rule, 
and  it  prevails  likewise  in  many  of  the  United  States.1  In 
such  case  the  value  of  the  property  at  the  time  of  advancement 
governs  in  the  distribution.2  The  principle  of  this  rule  is 
equality  of  distribution  of  the  ancestor's  personal  estate  among 
his  children  and  their  descendants.  A  fiduciary  debt  from 
parent  to  child  muste  of  course  be  separately  accounted  for  out 
of  his  estate.3 

The  sale  of  expectant  estates  by  heirs  is  not  to  be  encouraged  ; 
one  reason  being  that  it  opens  the  door  to  taking  undue  advan- 
tage of  an  heir  in  distressed  and  .necessitous  circumstances  ;  the 
other  that  public  policy  should  prevent  an  heir  from  shaking 
off  his  father's  authority  and  feeding  his  extravagance  by  dis- 
posing of  the  family  estate.4  The  principle  was  formerly  laid 
down  with  much  emphasis  in  Massachusetts.5  But  the  present 
rule  of  chancery  is  to  support  such  sales  to  others,  if  made  bona 
fide,  and  for  valuable  consideration ;  and  in  case  of  an  heir 
apparent,  if  the  instrument  be  made  with  the  knowledge  and 
consent  of  the  father.6  Whether,  however,  the  son  can  release 
to  the  father  himself,  so  as  to  operate  further  than  as  a  receipt 
for  property  advanced  to  him,  is  more  doubtful.7 

1  2  Bl.  Com.  516;  2  Wms.  Ex'rs,  121;  contra,  Boynton  v.  Hubbard,  7 
1386;  2  Kent,  Com.  421;  Jackson  v.  Mass.  112.  See  Varick  v.  Edwards, 
Jackson,  28  Miss.  674;  Barnes  v.  Hazle-  1  Huff.  Ch.  383;  2  Kent,  Com.  475^ 
ton,  50  111.  429 ;  Schotiler,   Executors,  and  cases  cited. 

§§  499,  500.  6  Curtis  v.  Curtis,  40  Me.  24. 

2  See  Jenkins  v.  Mitchell,  4  Jones,  7  See  Robinson  v.  Robinson,  Brayt. 
Eq.  207.  For  the  New  York  rule,  see  59;  Walker  v.  Walker,  67  Penn.  St. 
Terry  v.  Dayton,  31  Barb.  519;  Beebe  186.  The  agreement  of  children  with- 
in Estabrook,  18  N.  Y.  Supr.  523.  out  their  father's  knowledge  to  release 

3  40  Ch.  D.  543.  all  rights  of  inheritance  in  land  to  one, 

4  Per  Lord  Thurlow,  1  Bro.  C.  C.  if  that  one  would  maintain  the  father 
10;  Co.  Litt.  265  a  ;  Sugden,  Vendors,  for  life,  is  not  against  public  policy, 
314,  and  cases  cited;  1  Story,  Eq.  Juris,  but  may  be  upheld  in  equity.  Walker 
§§  336-339.  v.  Walker,  lb. 

6  But  see  Trull  v.  Eastman,  3  Met. 

439 


§  273  THE   DOMESTIC    RELATIONS.  [PART  III. 

Where  a  legacy  is  given  by  a  parent  to  his  child,  or  by  one  in 
loco  'parentis,  by  way  of  maintenance,  the  child  as  legatee  is 
privileged  in  being  allowed  interest  thereon  from  the  testator's 
death  ;  this,  so  as  to  secure  the  child's  prompt  and  full  support. 
And  the  presumptive  right  to  interest  is  held  to  be  all  the 
same,  notwithstanding  the  child  has  no  guardian,1  or  the  testa- 
tor was  not  obliged  to  render  support ; 2  but  not  where  the  will 
makes  other  express  provision  for  maintenance.3 

The  child's  right  of  inheritance  from  his  parent,  it  may  be 
added,  is  strongly  favored  both  in  England  and  America.  But 
while  in  the  former  country  the  eldest  son  is  so  far  preferred  to 
the  other  children  that  he  shall  take  the  whole  real  estate  by 
descent  to  himself,  the  American  rule  is  that  all  children  shall 
inherit  alike,  whether  sons  or  daughters.  And  a  father's  will 
is  to  be  construed  with  favor  to  his  own  offspring  ;  indeed,  some 
of  our  local  statutes  expressly  provide  that  when  a  testator 
omits  to  provide  for  any  children,  they  shall  take  the  same 
share  of  the  testator's  estate,  both  real  and  personal,  that  would 
have  passed  to  them  if  the  parent  had  died  intestate,  unless 
they  had  other  provision  during  the  testator's  life,  or  it  clearly 
appears  that  the  omission  was  intentional  on  his  part.4 

§  273.  Stepchildren  ;  Quasi  Parental  Relation.  —  It  is  well 
settled  that  in  the  absence  of  statutes  a  person  is  not  entitled 
to  the  custody  and  earnings  of  stepchildren,  nor  bound  by  law 
to  maintain  them.5     Yet,   if  a  stepfather  voluntarily  assumes 

1  Kent  ;;.  Dunham,  106   Mass.  586 ;  child,  and,  never   having   assumed  the 

Fowler  v.  Colt,  22  N.  J.  Eq.  44.  latter's  care  and  support,  charges  for 

-  For  the   testator   might    have  in-  necessaries  in  her  accounts,  he  does  not 

tended  support  from  the  legacy.    Brown  stand  in  loco  parentis.     17   Oreg.  115. 

v.  Knapp,  7'.)  N.  Y.  136.  So,  too,  where  he   contracts   with   the 

:1  In  re  George,  47  L.  J.  Ch.  118.  child's  guardian    for  its  support  upon 

4  Sic   Mass.  Gen.  Stats,  c.  02,  §  25;  recompense.     Ackerman,  Re,  116N.  Y. 

2  Kent,  Com.  421  ;  4  Kent,  ( !om.  471  ;    1  654.     The  child's  right  to  the  heneficial 

Jarm,  Wills,  5th  Am.  ed.  129,  n.;  Schou-  use  of  his  own  property,  inclusive  of  a 

ler,  Executors,  §$  499,  500.  farm  on  which  his  stepfather  lives  with 

Tubb    v.    Harrison,  4    T.   R.  118;  his  mother,  is   regarded  on   a   mutual 

■J    Kent,    Com.    192;     FretO    V.    Brown,  accounting  in  such  cases.      Springfield 

i   Mass.  675;  Worcester  v.  Marchant,  r.   Bethel,  90  Ky.  593;    129  111.  509. 

It  Pick.  ">l<>;  supra,  §237;  57  111.480;  As   to  an   adult   stepdaughter's  claim 

McMahill  v.  McMahill,    113    111.   461;  founded  upon  express  contract,  see  74 

I'.'   ondj ,/'',  32  Minn.  885.     K  a  step-  Wis.  176. 
father  qualifl              irdian  of  the  step- 

440 


CHAP.  V.]       DUTIES    AND   RIGHTS    OF   CHILDREN. 


273 


the  care  and  support  of  a  stepchild,  he  stands  in  loco  parentis 
for  the  time  being ;  and  the  presumption  then  is,  that  they  deal 
with  each  other  as  parent  and  child,  and  not  as  master  and  ser- 
vant ;  in  which  case  the  ordinary  rules  of  parent  and  child  will 
be  held  to  apply ;  and  consequently  neither  compensation  for 
board  is  presumed  on  the  one  hand,  nor  for  services  on  the 
other.1  So  may  this  quasi  relation  exist  between  the  child  and 
some  other  person,  —  such  as  a  grandfather,  —  and  with  similar 
legal  consequences  reciprocally.2  And  such  relation  may  ex- 
tend, as  with  natural  parents,  beyond  the  child's  minority  under 
suitable  circumstances.3  As  to  third  parties,  the  usual  test  is 
whether  one  has  held  out  the  child  as  a  member  of  his  own 
family.4 


1  Cooper  v.  Martin,  4  East,  77  ;  Wil- 
liams v.  Hutchinson,  3  Comst.  312; 
Sharp  v.  Cropsey,  11  Barb.  224;  Mur- 
dock  v.  Murdock,  7  Cal.  511  ;  Gillett  v. 
Camp,  27  Mo.  541  ;  Hussee  v.  Round- 
tree,  Busbee,  110;  Lautz  v.  Frey,  14 
Penn.  St.  201  ;  Davis  v.  Goodenow,  27 
Vt.  715  ;  Brush  v.  Blanchard,  18  111.  46 ; 
St.  Ferdinand  Academy  v.  Bobb,  52 
Mo.  357;  Smith  v.  Rogers,  24  Kau. 
140;  Mowbry  v.  Mowbry,  64  111.  383; 
Livingston  v.  Hammond  (1894),  Mass. ; 
149  111.  195.  Homestead  rights  are 
thus  acquired  by  a  stepfather.  86  Ga. 
576.  As  to  a  stepchild  remaining  after 
attaining  majority,  see  Wells  v.  Per- 
kins, 43  Wis.  160;  Harris  v.  Smith, 
79  Mich.  54.  For  claims  upon  the  es- 
tate of  a  deceased  stepson,  see  Gayle 
v.  Hayes,  79  Va.  542. 

2  Hudson  v.  Lutz,  5  Jones,  217; 
Butler  v.  Slam,  50  Penn.  St.  456 ; 
Schrimpf  v.  Settegast,  36  Tex.  296; 
Hays  v.  McConnell,  42  Ind.  285  ;  77 
Md.  494 ;  Windland  v.  Deeds,  44  Iowa, 
98.  But  the  presumption,  as  between 
son-in-law  and  father-in-law,  is  that 
they  deal  on  the  mutual  footing  of 
debtor  and  creditor.  Wright  o.  Don- 
nell,  34  Tex.  291  ;  Schoch  v.  Garrett, 
69  Penn.  St.  144  ;  Rogers  v.  Millard, 
44  Iowa,  466  But  cf.  supra,  Hus.  & 
Wife,  §  71.  All  this  is  matter  of  evi- 
dence upon  the  facts.     Coe  v.  Wager, 


42  Mich.  49 ;  39  N.  J.  Eq.  227  ;  Norton 
v.  Ailor,  1 1  Lea,  563 ;  Ela  v.  Brand,  63 
N.  H.  14. 

Where  the  parent  by  his  will  leaves 
to  A  a  devise  or  legacy  to  support  and 
educate  his  child,  acceptance  by  A  of 
the  gift  obligates  him  to  perform  ac- 
cordingly.    125  Ind.  168. 

3  Bixler  v.  Sellmau,  77  Md.  494; 
137  111.  349,  403;  56  Ark.  382;  43 
Wis.  160;  79  Mich.  54. 

4  St.  Ferdinand  Academy  v.  Bobb, 
52  Mo.  357  ;  60  N.  H.  20. 

For  an  adopted  child  the  doctrine 
in  loco  parentis  is  applied  as  to  services 
and  wajjes  in  Brown  v.  Welsh,  27  X.  J. 
Eq.  429.  See  supra,  §  232.  In  the  case 
of  distant  relatives  and  strangers,  any 
presumption  that  one  goes  to  live  in 
the  household  on  the  footing  of  mem- 
ber of  the  family  instead  of  servant  is 
less  strong  than  where  one  is  a  child ; 
and  such  presumption  is  more  readily 
overcome  by  circumstantial  evidence. 
Thornton  v.  Grange,  66  Barb.  507 ; 
Tyler  v.  Burrington,  39  Wis.  376; 
Neal  v.  Gilmore,  79  Penn.  St.  421.  And 
as  to  inferring  a  claim  for  a  young 
child's  support  against  the  child's  own 
parent,  see  Carroll  v.  McCoy,  40  Iowa, 
38  ;  Thorp  v.  Bateman,  37  Mich.  68. 
As  to  strangers,  indeed,  when  the  child 
is  old  enough  to  perform  valuable  ser- 
vice bevoud  the  worth  of  support,  the 

441 


§  274  THE   DOMESTIC   RELATIONS.  [PART  III. 

§  274.  Claims  against  the  Parental  Estate  for  Services  ren- 
dered. —  Claims  for  services  rendered  to  a  parent,  or  to  some 
one  standing  in  place  of  a  parent,  are  not  unfrequently  pre- 
sented against  the  parental  estate  after  decease.  Thus,  where 
an  adult  child  resides  with  and  performs  valuable  service 
for  the  parent,  an  understanding  may  be  shown  between  them 
of  recompense  either  in  money  or  by  way  of  testamentary 
provision  under  the  parent's  will.  In  meritorious  instances, 
and  particularly  where  the  parent  was  long  sick  and  infirm, 
and  the  child,  or  some  particular  child,  performed  indispensable 
functions,  or  where  by  personal  labor  and  skill  the  child  enhanced 
the  value  of  the  parental  estate,  a  mutual  intention  to  this  effect 
may  be  inferred  from  the  circumstances ;  and  where,  from  some 
consistent  cause,  no  such  testamentary  provision  has  been  made, 
compensation  will  be  allowed  out  of  the  deceased  parent's  estate 
upon  the  usual  footing  of  a  creditor's  claim.1  Presumptions, 
however,  as  we  have  seen,  are  unfavorable,  and  must  be  over- 
come ; 2  and  especially  if  the  child  seeks  an  advantage  over 
other  heirs,  some  express  contract  or  affirmative  evidence  of 
intention  ought  to  appear;  and  so,  too,  presumptions  are  against 
the  reimbursement  of  parental  care  and  trouble  bestowed  upon 
one's  offspring.3 

Where  the  relationship  was  more  distant,  or  the  parties  con- 
cerned were  not  kindred  at  all  or  united  by  marital  ties,  the 

pr< sumption  is  rather  that  of  a  contract  expectation  cannot  create  an  enforce- 

relation  for  compensation.     In  general,  able   contract ;    but    a    mutual   under- 

the  estate  of  one  who  has  contracted  for  standing,  if  shown,  may  afford  the  basis 

Bervices  to  be  rendered  to  the  family  is  of  a  valid  claim  against  an  estate.     See 

liable  for  the  same  performed  after  his  Shakespeare   v.    Markham,    17    N.    Y. 

death.     Toland  v.    Stevenson,   59    Ind.  Supr.  311,  322,  and  cases  cited;  87  Ga. 

485;  Frost  v.  Tarr,  53  Ind.  390;  Hau-  678. 

s<r  v.  Sain,  74  N.  C.  .r);")2  ;  Shakespeare  "  Zimmerman    v.   Zimmerman,    729 

B.Markhara,  17N.Y.  Supr.311;  Schou-  Penn.  St.  229;   §  269;  118  Mo.  418; 

ler,  Executors,  §  432.     But  cf .  §  474.  Hudson   r.    Hudson,  90  Ga.   581.     But 

1   Freeman  v.  Freeman,  65  111.  106;  an   agreement  to  make  a  will  in  the 

Markey  v.  Brewster,  17  X.  Y.  Supr.  16.  child's  favor,  though  invalid  in  a  testa- 

Specifle  performance  has  been  decreed  mentary  sense,  imports  a  contract  to  be 

of  a  promised  conveyance  in  considera-  sued  upon.    Ellis  '•.  Cary,  74  Wis.  176. 
ti-in.  i                 igh   the  will   were  insuf-  8  Seitz's  Appeal,  87  Penn.  St.  159. 

flcient      Hi:,!!  v.  Williams,  72  Mo.  214.  See  supra,  §  238;  Reando  v.  Misplay, 

A^  to  in   general  performing  90  Mo,  251,  where   necessary  services 

pectation  <>!  a  legacy,  mere  were  rendered  to  an  insane  mother. 

442 


CHAP.  V.]       DUTIES    AND    RIGHTS    OF    CHILDREN.  §  275 

inference  of  a  promise  to  recompense  the  service  rendered  is  of 
course  more  readily  raised,  whether  the  claim  be  presented  against 
the  person  served,  or  against  his  estate,  upon  his  decease.1 

§  275.  Suits  between  Child  and  Parents.  —  It  is  intimated  in 
a  recent  case  that,  while  one  occupying  the  quasi  parental  rela- 
tion towards  a  minor  stranger  by  blood  may  claim  that  the 
child's  services  are  offset  by  the  maintenance,  care,  and  educa- 
tion lie  has  bestowed  upon  him,  the  failure  to  provide  properly 
while  the  child  rendered  services  raises  a  liability  for  those  ser- 
vices which  the  child,  on  attaining  majority,  may  enforce.2  The 
question,  moreover,  is  sometimes  raised  in  these  days,  whether 
a  young  son  or  daughter  occupying  the  filial  relation  may  not, 
on  becoming  of  age,  sue  the  parent  or  quasi  parent  for  alleged 
maltreatment  or  other  injury.3  "With  reference  to  a  blood  par- 
ent, however,  all  such  litigation  seems  abhorrent  to  the  idea  of 
family  discipline  which  all  nations,  rude  or  civilized,  have  so 
steadily  inculcated,  and  the  privacy  and  mutual  confidence 
which  should  obtain  in  the  household.  An  unkind  and  cruel 
parent  may  and  should  be  punished  at  the  time  of  the  offence, 
if  an  offender  at  all,  by  forfeiting  custody  and  suffering  criminal 
penalties,  if  need  be ;  but  for  the  minor  child  who  continues, 
it  may  be  for  long  years,  at  home  and  unemancipated,  to  bring 
a  suit,  when  arrived  at  majority,  free  from  parental  control  and 
under  counter-influences,  against  his  own  parent,  either  for  ser- 
vices accruing  during  infancy  or  to  recover  damages  for  some 
stale  injury,  real  or  imagined,  referable  to  that  period,  appears 
quite  contrary  to  good  policy.  The  courts  should  discourage 
such  litigation  ;  and  so  upon  corresponding  grounds  the  parent's 
suit  as  to  any  cause  of  action  referable  to  the  period  and  relation 
of  tender  childhood.4 

1  Briggsu.  Briggs,  46  Vt.  571  ;  Mor-  daughter,  aged  twenty-three,  joined 
ton  v.  Rainey,  82  111.  215;  Broderick  v.  with  her  husband  in  an  action  for  an 
Broderick,  28  W.  Va.  378.  alleged    assault   committed    upon    her 

2  Schrimpf  v.  Settegast,  36  Tex.  296.  by  her  parent  when  she  was  eleven 
And  in  strong  cases  the  child's  right  of  years  old.  The  trial  resulted  in  a  ver- 
action  lies  during  minority.  125  Ind.  diet  for  the  defendant,  and  the  plaintiffs 
168.  did  not  proceed  farther;  consequently 

8  The  writer  is  informed  of  a  nisi    the  case  is  not  reported. 
pruts  Maine  case  tried  about  the  close         4  Clear  precedents  are  wanting  on 
of   1880   (French   v.   Allen),   where   •     these   points:    but  the   policy  of    the 

443 


§  276 


THE   DOMESTIC   RELATIONS. 


[PART   III. 


Equity,  however,  regards  the  rights  of  parent  and  child,  as 
well  as  of  husband  and  wife,  and  separates  their  property  inter- 
ests.1 An  oppressive  contract  relative  to  property  extorted  by 
a  parent  from  the  child,  or  by  an  adult  child  from  the  parent, 
may  doubtless  be  relieved  against.2 


CHAPTEE  VI. 


ILLEGITIMATE   CHILDREN. 


§  276.  Illegitimate  Children  ;  their  Peculiar  Footing.  —  Ille- 
gitimate children,  or  bastards,  stand  upon  a  different  footing 
from  legitimate  children.  We  have  already  seen  that  bastards 
may  be  legitimated  in  many  of  the  United  States,  by  the  subse- 
quent marriage  of  their  parents  or  otherwise.  The  rights  and 
disabilities  of  bastards,  as  such,  and  while  continuing  illegiti- 
mate, require  our  present  attention. 


common  law  appears  to  be  hostile  to 
permitting  such  suits.  And  so  is  the 
late  case  of  Hewlett  v.  Ragsdale,  68  Miss. 
703.  Parent  and  child  do  not  stand 
strictly  as  sui  juris  regarding  the  world 
or  one  another;  but  infancy  is  usu- 
ally taken  to  be  a  relation  analogous 
at  common  law  to  that  of  coverture. 
Now,  as  to  coverture,  it  is  clear  that 
from  regard  to  the  peace  of  society  the 
common  law  forbade  husband  ami  wife 
to  -ne  one  another  in  damages  for 
breach  of  the  marital  rights;  though 

ling  that  the  breach  of  obligation 
on  on*  >t   release  from  obliga- 

tion on  the  other;  that  there  might  be 

:l  redress,  separation,  &c.  See 
Schouler,   Hus.   &   Wife,  §  72.     Even 

after  a  divorce  it  is  recently  held  that 
tie-  -amiity  of  the  marriage  union  shall 

disl  urbed  by  buc!  litigation  be- 
tween th"  divorced  spouses.    //<■  §  561 ; 

Abbott    v.    Abbott,    07    Me.   304.      Of 

4-14 


course  one  spouse  might  be  held  crim- 
inally responsible  at  the  time  for  a  per- 
sonal wrong  against  the  other.  Equity, 
with  reference  to  property  and  adverse 
interests  therein,  regards  married  par- 
ties as  subject,  moreover,  to  litigation  ; 
but  that  is  something  quite  different 
so  far  as  public  policy  and  the  interests 
of  society  are  concerned.  It  seems  to 
us  that  these  analogies  have  a  close 
application  to  the  filial  relation.  And 
suits  on  an  injured  infant's  behalf 
ought,  if  allowable  at  all,  to  be  allowed 
at  or  about  the  time  of  the  parental 
breach,  only  to  the  infant  suing  by  next 
friend.  And  the  more  essential  point 
is  to  get  rid  of  the  cruel  custodian;  as 
a  child,  nmler  fit  circumstances,  may. 
See,  as  to  actions  by  or  against  infants. 
post,  Part  V.  c.  6. 

1  Post,  Part  V.  c.  6. 

2  Bowe  v.  Bowe,  42  Mich.  195. 


CHAP.  VI.]  ILLEGITIMATE   CHILDREN.  §  277 

The  rights  of  a  bastard  are  very  few  at  the  common  law  ; 
children  born  out  of  a  legal  marriage  having  been  from  the 
earliest  times  stigmatized  with  shame,  and  made  to  suffer 
through  life  the  reproach  which  was  rightfully  visited  upon 
those  who  brought  them  into  being.  The  dramatist  depicts  the 
bastard  as  a  social  lshmaelite,  ever  bent  upon  schemes  for  the 
ruin  of  others,  fully  determined  to  prove  a  villain  ;  thus  fitly 
indicating  the  public  estimate  of  such  characters  centuries  ago 
in  England.  The  law-writers,  too,  pronounce  the  bastard  to  be 
one  whose  only  rights  are  such  as  he  can  acquire  ;  going  so  far 
as  to  demonstrate,  by  cruelly  irresistible  logic,  that  an  illegiti- 
mate child  cannot  possibly  inherit,  because  he  is  the  son  of 
nobody ;  sometimes  called  filius  nullius,  and  sometimes  jilius 
■pojouli}  Coke  seemed  to  concede  a  favor  in  admitting  that  the 
bastard  might  gain  a  surname  by  reputation  though  none  by 
inheritance.2 

§  277.  Disability  of  Inheritance.  —  The  most  important  dis- 
ability of  an  illegitimate  child  at  the  common  law  is  that  lie 
has  no  inheritable  blood;  that  he  is  incapable  of  becoming  heir, 
either  to  his  putative  father  or  to  his  mother,  or  to  any  one 
else  ;  that  he  can  have  no  heirs  but  those  of  his  own  body.3 
This  was  likewise  the  doctrine  of  the  civil  law ;  the  language 
of  the  Institutes  as  to  spurious  offspring,  patron  habere  non  in- 
telliguntur,  dealing  rather  more  gently  with  a  fact  so  extremely 
delicate  and  painful.4  At  the  old  canon  law  a  bastard  was 
treated  as  also  disqualified  from  holding  dignities  in  the  church ; 
but  this  doctrine  became  exploded  long  ago.  "  And  really," 
adds  Blackstone,  with  warmth,  as  if  to  atone  for  a  long  and 
fallacious  argument  against  legitimation  by  a  subsequent  mar- 
riage, "  any  other  distinction  but  that  of  not  inheriting,  which 
civil  policy  renders  necessary,  would,  with  regard  to  the  inno- 
cent offspring  of  his  parents'  crimes,  be  odious,  unjust,  and  cruel 
to  the  last  degree."  5     And  so  might  the  commentator  of  the 

1  Fort,  de  LI.  c.  40;  1  Bl.  Com.  119.  A  legitimacy  declaration  act  in 
458.  foreign  marriages  is  a  feature  of  modern 

2  Co.  Litt.  3.     The  very  term  "  bas-     English  law.     See  §  32  a. 

tard,"  said   to    be    derived    from    the  3  2  Kent,  Com.  212 ;  1  Bl.  Com.  459 

Saxon   words   "base   start,"   expresses  4  Inst.  1,  10,  12;  2  Kent,  Com.  212. 

contempt.     See  Eraser,  Parent  &  Child,  5  1  Bl.  Com.  459. 

445 


§  277  THE    DOMESTIC    RELATIONS.  [PART   III. 

commentaries  stigmatize  the  efforts  of  those  who  have  nothing 
better  to  urge  against  human  rights  than  the  importance  of 
preserving  the  symmetry  of  the  law  unimpaired. 

The  civil  law,  while  offering  in  certain  cases  a  hope  of  legiti- 
mation, made  a  distinction  between  spurious  offspring  born  of  an 
unfettered  promiscuous  intercourse,  and  such  as  were  conceived 
or  born  during  the  marriage  of  one  of  the  natural  parents,  or 
were  otherwise  the  product  of  a  complex,  nefarious,  or  inces- 
tuous commerce  ;  presuming  that  while  the  former  might  be 
rendered  legitimate,  the  latter  never  could  become  so.1  And 
the  rule  was  more  severe  with  the  one  class  than  the  other. 
Natural  children  of  the  former  kind  were  to  be  legitimated  per 
rescriptum  principis,  on  the  requisition  of  the  father  in  certain 
special  circumstances,  as  matter  of  legal  right;  but  the  sover- 
eign rescript  was  extended  to  children  of  the  other  sort  only 
occasionally  as  an  exercise  of  sovereign  grace  and  subject  to 
the  sovereign  conditions.2  This  principle  is  to  be  traced  in  the 
provisions  of  the  Louisiana  Code  ;  children  whose  father  is  un- 
known, and  adulterous  or  incestuous  children  having  no  right  of 
inheritance,  while  other  natural  or  illegitimate  children  succeed 
to  the  estate  of  their  mother  in  default  of  lawful  children  or 
descendants,  and  under  certain  conditions  to  the  estate  of  the 
father  who  has  acknowledged  them.3 

The  well-settled  American  rule,  however,  differs  considerably 
from  that  of  both  civil  and  common  law.  We  have  already 
noticed  that  legitimation  by  subsequent  marriage  is  a  principle 
admitted  very  generally  in  the  legislation  of  the  different  States.4 
So,  too,  are  there  various  statutes  which  permit  even  bastard 

1  1    Dig.   ."),   23;    Fraser,   Parent  &  of  the  ruling  power,  and  subject  to  its 

Child,  119;  supra,  §§  226,  229.  conditions.     And.  see  §  229. 
-  See  Gera  v.  Ciantar,  \2  App.  ">.">7.         :;  See  2  Kent,  Com.  213. 
Justinian's  Nov.  89  is  specific  on  tins         4  See  §§  22t'>,  227.     A  child  born  out 

matter   of    legitimation   per   rescriptum  of  wedlock,  but  afterwards  legitimated 

pis  with  this  discrimination  against  by  subsequent  marriage,  is  :m  heir  and 

offspring  of  nefarious  commerce.     By  distributee  Uke  the  other  children,  and 

the  later  civil  law,  after  the  dissolution  has  all  the  rights  of  a  legitimate  child, 

of  the  Roman   Empire,  children  of  pa-  so  far  as  the  local  legislation  in  favor 

Eree  to  marry  at  the  time  of  their  of  such  legitimacy  can  give  it  this  nni- 

ption  and  birth  conld  long  be  legiti-  versal  effect.     Miller  v.  Miller,  '.n  N.  Y. 

mated  as  matter  of  right;  but  children  815;    Williams  v.   Williams,    11    Lea, 

of  tin;  othi  t  class  onli  at  the  discretion  <i">2. 

I  L6 


CHAP.  VI.] 


ILLEGITIMATE    CHILDREN. 


§277 


children  to  inherit  from  the  father  under  certain  restrictions ; 
and  legitimation  by  some  public  act  of  paternal  recognition  or 
adoption  is  applied  by  some  codes  aside  from  marriage  ;*  while; 
the  generally  recognized  doctrine  is  partus  sequitur  ventrem, 
and  that  the  illegitimate  child  and  his  mother  shall  mutually 
inherit  from  each  other ;  and  while,  of  course,  if  the  bastard 
leaves  lawful  issue,  such  issue  inherit  like  any  other  legitimate 
offspring.2  More  than  fifty  years  ago,  Kent  instanced  twelve 
States  where  bastards  could  inherit  from,  and  transmit  to,  their 
mothers,  real  and  personal  estate,  under  some  modifications ; 
"while  in  New  York,  the  mother  and  her  kindred  could  inherit 
from  her  bastard  offspring.8  There  is  scarcely  a  State  in  the 
Union  which  has  not  departed  widely  from  the  policy  of  the 
English  common  law  ;  and  statutes,  which  happily  have  required 
as  yet  very  little  judicial  interpretation,  perpetuate  the  record 


1  Supra,  §  226  ;  44  Kan.  12. 

2  Stimson's  Statute  Law,  §§  3151  — 
3154;  Grundy  v.  Hadfield,  16  N.  J. 
579  ;  Lewis  v.  Eutsler,  4  Ohio  St.  354 ; 
Opdyke's  Appeal,  49  Peun.  St.  373 ; 
Hawkins  v.  Jones,  19  Ohio  St.  22; 
Riley  v.  Byrd  3  Head,  20;  Miller  v. 
Stewart,  8  Gill,  128;  Earle  v.  Dawes, 
3  Md.  Ch.  230;  Bates  v.  Elder,  118  111. 
436;  127  111.  425.  But  cf.  Jackson  v. 
Jackson,  78  Ky.  390.  As  to  conflict 
of  laws,  in  inheriting  land  from  father, 
&c.,  see  §  231  ;  112  111.  234. 

3  See  2  Kent,  Com.  11th  ed.  212, 
213,  and  notes;  Keeler  v.  Dawson,  73 
Mich.  600;  Stimsou,  §§  3151-3154. 
And  as  to  inheritance  from  the  father, 
see  supra,  §  229.  These  statutes  of 
inheritance  are  not  generally  to  be  ex- 
tended by  construction  so  as  to  apply 
to  grandchildren  and  grandparents,  in 
a  case  of  illegitimacy.  See  Steckel's 
Appeal,  64  lJenn.  St.  493 ;  Berry  v. 
Owens,  5  Bush,  452.  For  construction 
of  the  word  "  illegitimate,"  see  Miller 
v.  Miller,  25  N.  Y.  Supr.  507.  An 
illegitimate  child  can  administer  on  his 
father's  estate  as  against  the  father's 
brother.  Re  Pico,  52  Cal.  84.  See 
Magee's   Estate,   S3   Cal.  414.     As  to 


an  illegitimate  child  unintentionally 
omitted  from  its  mother's  will,  see  57 
Cal.  484.  And  see  Iowa  code  making 
illegitimate  children  capable  of  inherit- 
ing. 24  Fed.  R.  15.  In  general,  an 
illegitimate  child,  where  there  was  no 
subsequent  marriage  of  the  parents, 
nor  adoption,  cannot  inherit  from  the 
putative  father.  As  to  such  acts  of 
inheritance,  a  child  is  rendered  legiti- 
mate only  sub  modo.  Neil's  Appeal,  92 
Penn.  St.  193.  An  adopted  illegitimate 
child  died,  having  inherited  land  from 
its  adopted  mother ;  and  its  natural 
mother  was  allowed  to  inherit  on  the 
child's  death  without  issue.  Krug  v. 
Davis,  87  Ind.  590  Adoption  codes  in 
some  States  would  receive  a  different 
construction.     See  §  232. 

A  child  begotten  of  a  mother  who 
had  married  in  good  faith,  not  knowing 
that  a  legal  impediment  to  the  marriage 
existed,  is  treated  with  favor.  Har- 
rington v.  Barfiehl,  30  La.  Aun.  297. 
By  local  statutes  the  legitimacy  of  such 
offspring  is  preserved  in  annulling  such 
marriages ;  as  we  have  seen  supra, 
Part  II.  c.  1.  And  see  VTatts  v.  Owens, 
62  Wis.  512. 

447 


§  278  THE   DOMESTIC   RELATIONS.  [PART   III. 

of  our  liberal  and  generous  public  policy  towards  a  class  of 
beings  who  were  once  compelled  to  bear  the  iniquities  of  the 
parent.1 

§  278.  Mother  preferred  to  the  Putative  Father;  Custody. — 
The  doctrine  that  a  natural  tie  connects  the  illegitimate  child 
peculiarly  with  his  mother  was  recognized  at  the  civil  law ;  for, 
under  the  ordinance  of  Justinian,  the  bastard  might  to  a  certain 
extent  inherit  from  his  mother.2  So  at  the  common  law  have 
the  obligations  of  consanguinity  between  the  mother  and  her 
illegitimate  offspring  been  applied  in  several  instances ;  and  it  is 
usually  the  mother  who  is  known  and  who  admits  herself  to  be 
the  child's  parent,  though  the  father  remain  unknown.  But  as 
concerns  any  exclusive  privileges  on  behalf  of  the  mother,  this 
dues  not  seem  very  clear ;  for  in  a  case  which  was  decided  in 
1786,  the  rights  of  the  putative  father  seemed  to  be  placed  on 
much  the  same  footing  as  in  other  cases ;  and  his  consent  was 
deemed  prima  facie  essential  under  the  marriage  act  of  26 
Geo.  I. ;  so  was  his  right  apparently  admitted  to  take  his  ille- 
gitimate child  out  of  the  parish.3 

There  are,  to  be  sure,  occasional  dicta  to  the  effect  that  the 
putative  father  has  no  common-law  right  to  the  custody  of  the 
child  as  against  the  mother,  and  that  certainly  within  the  age 
of  nurture,  that  is,  under  the  age  of  seven,  the  mother  has  the 
exclusive  right  to  the  custody.  The  more  correct  statement, 
however,  is  that  pauper  children,  whether  legitimate  or  not,  are 
under  the  English  system  made  inseparable  from  the  mother 
within  the  years  of  nurture  ;  and  that  at  common  law  neither 
the  putative  father  nor  the  mother  of  an  illegitimate  child  had 
any  exclusive  right  of  guardianship.4  The  common-law  cases 
cited  in  the  mother's  favor  are  only  to  the  effect  that  where  a 
bastard  child  within  the  period  of  nurture  is  in  the  peaceable 
possession  of  the  mother,  and  the  putative  father  gets  possession 
of  the  child  by  force  or  fraud,  the  court  will  interfere  to  put 


1   [n  States  which  permit  illegitimate         2  Code,  lib.  6,  57.    See  2  Kent,  Com. 

children  "recognized"  by  the  father  to  214. 

inherit    from    him,   Bach   children   are         8  King  v.  Hodnett,  1  T.  R.  flfi,  and 

"heirs"  under  a  statutory  description,  cases  cited  passim ;  Macphers.  Inf.  67. 

152  I  i  I  Kan.  12.  *  Macphors.  Inf.  07. 

448 


CHAP.  VI.]  ILLEGITIMATE   CHILDREN.  §  278 

matters  in  the  same  situation  as  before.1  Both  Lord  Kenyon 
and  Lord  Ellenborough  —  the  latter  as  late  as  1806  —  expressed 
doubts  as  to  whether  the  court  would  take  away  the  custody  of 
an  illegitimate  child  from  the  father  who  had  fairly  obtained 
possession,  and  award  it  to  the  mother.2  Nor  do  the  later 
English  cases  aid  greatly  in  clearing  up  the  doubt  on  this  point. 
Lord  Mansfield  regarded  the  law  as  doubtful  in  his  day,  while 
himself  inclining  strongly  to  the  opinion  that  the  putative  father 
had  no  right  to  his  child's  custody.3  In  1841  a  case  came  before 
the  Court  of  Common  Pleas,  on  a  writ  of  habeas  corpus,  applied 
for  by  the  mother,  the  child  being  then  between  eleven  and 
twelve  years  of  age,  and  in  the  custody  of  her  putative  father. 
But  the  child  was  deemed  old  enough  to  exercise  her  own  dis- 
cretion as  to  where  she  would  go ;  and  as  she  appeared  unwill- 
ing to  go  with  her  mother,  the  court  would  not  permit  the 
mother  to  take  her  by  force.4 

The  chancery  courts  have  in  several  instances  favored  the 
father  of  an  illegitimate  child  to  the  exclusion  of  his  mother. 
Thus,  while  the  practice  is  not  to  appoint  the  putative  father 
guardian  of  his  illegitimate  child  having  no  property,  unless  he 
makes  a  settlement  upon  him ;  yet,  if  he  does  so,  his  appoint- 
ment is  favorably  regarded.  No  special  regard  seems  to  have 
been  paid  to  the  mother  of  such  children.5  And  while  the 
committee  of  a  lunatic  might  petition  for  an  allowance  for  his 
bastard  offspring,  their  mother  might  not.6 

But  the  language  of  the  new  poor  laws  of  England  (after 
many  changes)  is  favorable  to  the  mother's  special  claims ; 
being  to  the  effect  that  the  mother  is  in  any  case  bound  to 
maintain  her  bastard  child  under  sixteen,  unless  such  child 
meantime  marries  or  acquires  a  settlement  of  its  own;  and 
that   such    child   shall   follow  the   settlement  of  the  mother.7 

1  Rex  v.  Soper,  5  T.  R.  278 ;  Rex  v.  4  Tn  re  Lloyd,  3  Man.  &  Gr.  547. 
Hopkins,  7  East,  579 ;  Rex  v.  Moseley,  Comparing  all  the  dicta  in  the  forego- 
5  East,  223.  ing  cases  carefully  together,  it  will  be 

2  Per  Lord  Kenyon,  Rex  v.  Moseley,  seen  that  they  are  not  decidedly  against 
supra  (1798) ;  per  Lord  Ellenborough,  the  putative  father's  right  of  custody. 
Rex  v.  Hopkins,  supra.  6  Macphers.  Inf.  110. 

3  Strangeways  v.  Robinson,  4  Taunt.  6  Re  Jones,  5  Russ.  154. 
498.     And   see  Pope  v.  Sale,  7  Bing.         7  4  &  5  Will.  IV.  c.  76,  §  71. 
477. 

29  449 


§  278<Z  THE   DOMESTIC   RELATIONS.  [PART   III. 

And  if,  being  of  ability,  she  neglects  to  support  such  child, 
whereby  it  becomes  chargeable  to  the  parish,  she  may  be 
punished  under  the  vagrant  acts.1  Another  section  of  the  act 
of  4  &  5  Will.  IV.,  which  provides  that  the  husband  shall 
support  stepchildren  of  his  wife,  includes  in  its  terms  illegiti- 
mate as  well  as  legitimate  children,  and  so  far  favors  a  hus- 
band's right  of  custody ;  but  that  provision  covers  only  a  very 
limited  ground.2  As  against  strangers,  at  all  events,  or  those 
even  with  whom  the  mother  has  temporarily  placed  her  spuri- 
ous child,  the  maternal  right  to  determine  the  child's  permanent 
custody  has  been  strongly  upheld  in  the  latest,  instance;  for  a 
mother,  though  a  kept  mistress,  was  lately  permitted  to  transfer 
the  custody  of  her  young  illegitimate  daughter  to  respectable 
persons  of  her  own  choice,  from  those  to  whom  she  had  first 
committed  the  child  and  who  resisted  her  right.3 

§  278  a.  The  Same  Subject.  —  The  rights  of  the  parents  of 
bastards  are  regulated  to  a  great  extent  in  the  United  States  by 
statute ;  and  our  policy  is  in  general  more  favorable  than  that 
of  England,  as  to  the  mother's  rights.  An  illegitimate  child 
follows  the  settlement  of  his  mother  in  New  York  and  some 
other  States.4  Bat  in  Connecticut  the  rule  is  that  a  bastard  is 
settled  where  born,  like  any  other  child,  and  that  his  settlement 
follows  that  of  the  putative  father.5  In  New  York,  again,  ever 
zealous  in  guarding  the  interests  of  women  and  children,  it  is 
broadly  ruled  that,  as  against  the  mother  of  a  bastard  child,  the 
putative  father  has  no  legal  right  of  custody ;  that  the  mother, 
as  its  natural  guardian,  is  bound  to  maintain  it ;  and  that  she 
is  entitled  to  control  it.6  Stratagem  and  force  on  the  part  of 
the  putative  father  always  furnish  good  grounds  for  restoration 

1  7  &  8  Vict.  c.  101  ;  8  &  9  Vict.  4  See  2  Kent,  Com.  214  ;  Canajoha- 
c.  10.  rie  ".Johnson,  17  Johns.  41  ;  Peter<liam 

2  4  &  5  Will.  IV.  c.  76,  §  5i.  See  v.  Dana,  12  Mass.  421);  Lower  Augusta 
comment  "f  Affanle,  ■).,  In  re  Lloyd,  •'{  i\  Salinsgrove,  64  Penn.  St.  166;  Stim- 
Man.  S  Gr.  547.  son,  §§  6635-6638. 

Queen  v.  Nash,  10  Q.  B.  D.  4.r>4.  6  Bethlem  v.  Roxbury,  20  Conn.  298. 
The  ■  ''"it  laid  Borne  Btress  npon  the  fact  And  Bee  Smith  v.  State,  1  Iloust.  C.  C. 
that  this  new  arrangement  appeared  to     i<>7. 

be  for  the  child's  interest,  and  held,  too,         "People    v.    Kling,   6    Barb.    306; 
that  the  child,  being  only  seven  years    Robalina  v.  Armstrong,  15  Barb.  247. 
old,  was  too  young  for  its  preferences 
to  i";  regarded. 

450 


CHAP.    VI.]  ILLEGITIMATE   CHILDREN.  §  279 

of  the  child  to  the  mother.1  And  the  Roman,  Spanish,  and 
French  laws  all  deny  the  power  of  the  putative  father  over  the 
illegitimate  child ;  this  principle  being  likewise  transferred  to 
Louisiana  and  other  States,  once  under  the  civil  law ;  though,  in 
Texas  at  least,  the  putative  father  is  allowed  the  guardianship 
of  such  child  after  the  mother's  death.2  In  some  States,  we 
may  add,  the  superior  rights  of  the  mother  in  binding  out  her 
illegitimate  child  are  favorably  regarded ; 3  and  her  superior  right 
to  custody  has  been  held  to  carry  a  right  of  transfer ; 4  but  the 
child's  welfare  is  considered  paramount.5 

§  279.  Maintenance  of  Illegitimate  Children.  —  The  common- 
law  rule,  in  absence  of  statutes,  is  that  the  putative  father  is 
under  no  legal  liability  to  support  his  illegitimate  offspring. 
But  upon  the  strength  of  the  natural  or  moral  obligation  arising 
out  of  the  relation  of  the  putative  father  to  his  child,  an  action 
at  common  law  lies  for  its  maintenance  and  support  upon  an 
express  promise;  and  where  one  admits  himself  to  be  the  father 
and  adopts  (so  to  speak),  while  such  adoption  continues,  a  prom- 
ise may  be  implied  in  favor  of  the  party  providing  for  it.  He 
may  renounce  such  adoption,  and  terminate  this  implied  as- 
sumpsit, in  which  case  there  is  no  remedy  to  be  pursued  unless 
under  a  statute.  The  father  can  only  be  charged  then  upon  his 
contract.6  But  upon  his  promise  to  third  persons,  he  may  be 
held  liable ;   and  a  promise  by  the  putative  father  to  pay  the 

1  Commonwealth  v.  Fee,  6  S.  &  R.  and  apprenticed  out  by  an  asylum,  see 
255.  Copeland  v.  State,  60lnd.  394. 

2  Acosta  v.  Robin,  19  Martin,  387  ;  *  Marshall  v.  Reams,  32  Fla.  499. 
Barela  v.  Roberts,  34  Tex.  554.  5  Ibid. 

3  Alfred  v.  McKay,  36  Ga.  440;  6  Hesketh  v.  Gowing,  5  Esp.  131; 
McGunigal  v.  Mong,  5  Penn.  St.  209;  Nichols  v.  Allen,  3  Car.  &  P.  36 ;  Fnrril- 
Pratt  v.  Nitz,  48  Iowa,  33 ;  106  Penn.  lio  v.  Crowther,  7  Dowl.  &  Ry.  612; 
St.  574.  Rut  a  putative  father  who  Cameron  v.  Raker,  1  Car.  &  P.  258  ; 
has  paid  a  judgment  against  himself  Moncrief  v.  Ely,  19  Wend.  405.  Claims 
for  breach  of  a  bond  to  the  town  for  for  maintenance  upon  the  estate  of  a 
the  child's  support,  and  has  received  deceased  putative  father  are  not  fa- 
the  child  with  authority  from  the  select-  voted,  where  no  express  and  binding 
men,  has  a  right  to  the  child's  control  contract  to  support  can  be  established, 
and  custody.  Adams  v.  Adams,  50  nor  are  verbal  declarations  readily 
Vt.  158.  As  to  the  guardian's  right  of  available  to  show  such  a  contract, 
custody  to  an  illegitimate  orphan  child,  Duncan  v.  Pope,  47  Ga.  445;  Nine  v. 
see  Johns  v.  Emmert,  62  Ind.  533.  And  Starr,  8  Greg.  49  ;  Dalton  v.  Halpin,  27 
where   the  child    has   been    abandoned  La.  Ann.  382. 

451 


§  279  THE   DOMESTIC   RELATIONS.  [PART    IIL 

stepfather  for  the  child's  support,  past  and  future,  if  he  will 
continue  to  support  it,  is  bindiug.1  Indeed,  where  the  putative 
father  has  expressly  agreed  to  pay  the  child's  relatives  for  its 
support  during  minority,  and  to  make  provision  by  will  for  that 
purpose,  the  child  has  been  allowed  to  bring  action  against  the 
father's  estate  to  recover  for  such  support  where  the  father  died 
without  making  the  provision  promised.2 

The  statutes,  however,  which  relate  to  the  maintenance  of 
bastard  children,  supply  the  want  of  adequate  common-law 
remedies ;  the  main  element  in  such  legislation  being  public 
indemnity  against  the  support  of  such  persons.  Under  the 
old  poor-laws  of  England,  the  mother  had  a  compulsory  remedy 
against  the  putative  father ;  but  this  was  taken  away  by  the  act 
of  4  &  5  Will.  IV.  c.  76.  By  the  statute  of  7  &  8  Vict.  c.  101, 
however,  the  mother  is  afforded  relief  once  more,  and  the  father 
may  be  summoned  before  the  petty  sessions  and  ordered  to  pay 
a  weekly  sum  for  the  child's  maintenance,  and  the  costs  of 
obtaining  the  order ;  maintenance  to  last  until  the  child  is 
thirteen  years  of  age.  The  money  is  to  be  paid  to  the  mother, 
and  may  be  recovered  by  distress  and  imprisonment.3  The 
provisions  of  law  in  force  in  most  of  the  United  States  are 
borrowed  from  the  older  English  statutes,  our  courts  being 
very  generally  invested  with  plenary  jurisdiction  over  such 
matters ;  and  at  the  instance  of  the  mother  the  father  may  be 
coerced  by  arrest  and  imprisonment,  if  need  be,  into  giving 
bonds  and  furnishing  maintenance  for  his  illegitimate  child ; 
thus  relieving  the  mother  to  some  extent  of  the  burden  to 
which  his  criminal  misconduct  has  chiefly  contributed,  and  in- 
demnifying the  public  against  the  support  of  the  penniless  and 
unfortunate.4 

1  Wiggins  v.  Keizer,  6  Ind.  252.  order  maybe  enforced  l>y  the  guardians 

-  Todd  v.  W<;l>er,  95  N.  Y.  181.  or  overseers  of  the  parish. 
:!  And    see   2  &  3  Vict.  c.  85  ;  8  &  9  4  2  Kent,  Com.  215,  and  cases  cited  ; 

Vict.   c.   101.     The   order  may   lie  ob-  State  v    Beatty,  66  N.  C.  648 ;  Musser 

tained  b)  ;t  married  woman,  mother  of  v.  Stewart,  21  Ohio  St.  353;  Marlett  v. 

the  bastard.     Regina  v.  Collingwood,  12  Wilson,  80  Ind.  240;  Barber  v.  State, 

Q.  B.  '.-I      And  see  Follit  v.  Koetzow,  24  Md.  383  ;  Wheelwright  v.  Greer,  10 

24  Jar.  651.     In  case  of  death  or  inca-  Allen,    389.      See    Bishop    and    other 

parity  "f  the  mother,  so  that  the  child  writers  on  statutory  crimes.     In  some 

become!   chargeable   to  the  parish,  the  States  certain  persons  are  authorized  to 

452 


CHAP.  VI.]  ILLEGITIMATE   CHILDREN.  §  280 

Past  seduction  has  been  held  sufficient  to  support  a  deed. 
There  is  an  old  English  case,  where  equity  compelled  the  speci- 
fic performance  of  a  deed-poll,  made  by  a  man  who  had  seduced 
a  woman  and  had  a  child  by  her ;  the  writing  promising  to  pay 
.£2,000  after  his  death  for  the  purchase  of  an  annuity  for  the 
mother  and  her  child  for  their  lives.  Both  the  man  and  the 
child  had  died  before  the  suit  was  brought.1  In  Pennsylvania, 
the  same  principle  is  pushed  even  farther ;  for  it  is  ruled  that 
seduction  of  a  female  and  begetting  a  bastard  is  sufficient  con- 
sideration to  support  a  man's  promise  to  give  bonds  for  a  sum  of 
money.2  Statutory  liability  of  a  father  to  support  his  bastard 
child  will  sufficiently  support  his  promise  to  do  so.3  But  there 
must  be  nothing  oppressive  or  unfair  in  such  transactions.4  Nor 
ought  agreements  as  to  the  wages  of  sin  to  be  favored.5 

Whatever  may  be  the  mother's  legal  responsibility  for  the 
maintenance  of  her  bastard  child  while  she  lives,  it  appears 
that  an  action  cannot  be  maintained  against  the  administrator 
of  her  estate  for  the  child's  maintenance  subsequently  to  her 
death.6 

§  280.  Persons  in  Loco  Parentis  ;  Distant  Relatives,  &c.  — - 
A  person  standing  in  loco  parentis  may  sue  per  quod  servitium 


make  complaint  against  the  father  for  &   Stu.   161.     The    undertaking    of    a 

maintenance  of  the  bastard,  where  the  putative    father    to    pay    the    mother 

mother  refuses  or  neglects  to  do  so.     lb.  money  for  the  support  of  the  child  is 

The  main  purpose  of  these  bastard  acts  not  illegal.     Hook  v.  Pratt,   78  N.  Y. 

is  to  indemnify  the  public  against  sup-  371.     A  negotiable   bill  might  thus  be 

port  of  the  child,  and  they  appear  to  be  given.     lb. 

in  the  nature  of  civil  proceedings.    Some  A  mother  may  sue  for  injuries  done 

codes  permit   a  prosecution  while  the  her,   notwithstanding   a    bastardy   act. 

woman    is  pregnant  and  regardless  of  Sutfin  v.  People,  43  Mich.  37. 
the  future  birth  of  the  child.     128  Ind.  3  53  Ark.  5.     See  Yearteau  v.  Bacon, 

397.     A    man    who  marries   a    woman  65  Vt.  516. 

known  by  him  to  be  pregnant,  becomes  4  It  seems  that  a  contract  made  to 

liable  for  the  support  of  the  child,  and  avoid  a  threatened  prosecution  for  baa- 

an  action  of  bastardy  will  not  lie  against  tardy  will  stand.     Rohrheimer  v.  Wiu- 

the  natural  father.    State  v.  Shoemaker,  ters,   126    Penn.    St.    253;    Merritt    v. 

62  Iowa,  343.     See  §  23.  Fleming,  42  Ala.  234. 

1  Marchioness  of  Annaudale  v.  Har-  5  See  Binnington  v.  Wallis,  4  B.  & 
ris,  2  P.  Wms.  433.     And  see  Turner  v.  Aid.  650. 

Vaughan,  2  Wils.  339.  u  Ruttinger  v.  Temple,  4   B.  &  S. 

2  Shenk  v.  Mingle,  13   S.  &  R.  29.  491.     And  see  supra,  §  278;  Druet  v. 
And  see  Phillippi  v.  Commonwealth,  18  Druet,  26  La.  Ann.  323. 

Penn.  St.  116;  Knye  v.  Moore,  1  Sim. 

453 


§  281  THE    DOMESTIC   RELATIONS.  [PART   III. 

for  the  abduction  of  bis  daughter's  illegitimate  child.1  But  a 
parent  is  not  bound  to  support  the  illegitimate  offspring  of  his 
children.2  Relatives  more  distant  than  parents  do  not,  on  the 
whole,  seem  to  have  much  consideration  in  matters  relating  to 
a  bastard ;  and  it  is  even  likely  that  the  assumption  of  a  family 
name  by  an  illegitimate  member  is  a  grievance  for  which  the 
offended  relatives  have  no  redress.3 

§281.  Bequests,  &c,  to  Illegitimate  Children. — Bequests  to 
illegitimate  children,  since  they  are  not  considered  as  relatives, 
are  not  favored  in  English  law.  There  have  been,  it  is  true,  cer- 
tain dicta  to  the  contrary  ;  but  Lord  Eldon  was  of  the  opinion 
that  there  must  be  something  to  show  that  the  testator  put  him- 
self in  loco  parentis  ;  and  it  has  since  been  decided  that  an  ille- 
gitimate child  is  not  merely,  as  such,  within  the  rule,  for  he  is 
"a  stranger  to  the  testator."4  On  the  ground  of  uncertainty 
in  the  person,  a  bequest  to  an  unborn  legitimate  child  was  long 
considered  objectionable ;  but  Lord  Eldon  and  others  main- 
tained that  legacies  given  to  the  unborn  illegitimate  child  of  a 
particular  woman  then  pregnant  would  be  good,  because  the 
uncertainty  of  description  could  here  be  obviated.5  But  it  is 
now  well  settled  in  England  that  a  devise  or  bequest  in  favor 
of  other  future  illegitimate  children  generally  is  void.6 

Illegitimate  children  may  undoubtedly  take  by  purchase  as 
persons  designated,  if  sufficiently  described.7  The  question  in 
cases  of  this  sort  is  really  one  of  intention.  Prima  facie,  the 
term  "  children  "  in  a  will,  however,  is  intended  to  mean  legiti- 
mate children ;  and  if  there  are  legitimate  children,  or  if  it  be 
possible  that  there  should  be  legitimate  children  of  the  person 
named,  the  English  rule  is  that  no  illegitimate  child  can  take 

1   Moritz  v.  Garnhart,  7  Watts,  302.  5  Macphers.     Inf.    570,    and     cases 

8  Hillsborongli '.  D';(  riiiix,  4  X.  II.  HG.  cited;   Gordon   v.  Gordon,  1    Mer.  141  ; 

*  I)n   Bonlay  v.  Dn  Boulay,   L.  R.  2  Dawson  v.  Dawson,  6  Madd.  292. 
P.    C.  480.     See   Vane   v.  Vane,   L.    K.  6  Beachcroft  v.  Beachcroft,  1  Madd. 

x  Ch.383.     A  widowed  mother  may  in  a  4.30;    Knye  v.  Moore,  1  Sim  &  Stu.  61  ; 

certain  sense  place  herself  in  loco  paren-  Wilkinson  v.  Wilkinson,  1  Yon.  &  Coll. 

ber  illegitimate  child.    91  Ga.  564.  657  ;  Medworth  v.  Pope,  27  Beav.  71. 
1   Lowndes  v.  Lowndes,  15  Ves.  304;         7  Blodwell   v.    Edwards,   Cro.    Eliz. 

I '.rr.  v.  Whitehead,6  V"es.547;  contra,  509;  Co  Litt.  86;  Peachey,  Mar.  SettL 

per  Lord   Alvanley,  Crickel   v.  Dolby,  885,  n. ;  Clifton  v.  Goodban,  L.  R.  6  Eq 

Macphers.  Inf.  238.  278;  Crook  v.  Hill,  L.  R.  6  Ch.  311. 
l.-.l 


CHAP.  VI.]  ILLEGITIMATE   CHILDREN.  §  281 

under  the  description  of  children.1  Yet,  if  they  have  acquired 
the  reputation  of  being  the  children  of  a  particular  person,  or 
if  the  will  shows  a  clear  intention  to  provide  for  such  persons, 
they  are  capable  of  taking  under  the  description  of  "  children," 
or  "  daughters."  2  In  Mcdworth  v.  Pope,  the  rule  was  concisely 
stated  to  be,  that  an  illegitimate  child  in  esse  or  en  ventre  sa  mere 
may,  if  properly  described,  take  the  benefit  of  a  devise  or  bequest, 
and  the  court  will  not  inquire  as  to  his  parentage  or  origin ;  but 
that  in  respect  of  future  illegitimate  children,  the  law  will  not 
let  them  take  under  any  description  whatever.  "  The  reason 
why  the  English  law  so  holds  is  that  it  considers  such  a  provi- 
sion for  future  illegitimate  children  as  contra  bonos  mores."  3  But 
the  English  chancery  still  wavers  in  applying  this  rule,  in  the 
absence  of  a  final  exposition  on  last  appeal  ;  for  it  is  lately  laid 
down  and  affirmed  that  a  gift  by  will  to  any  illegitimate  chil- 
dren of  a  testator  in  effect  who  may  be  in  esse  before  the  tes- 
tator's own  death  is  a  valid  gift.4 

In  this  country,  the  tendency  seems  to  be  so  far  favorable  to 
illegitimate  children  as  to  regard  wills  made  in  their  favor  with 
the  same,  or  nearly  the  same,  consideration  as  all  others.     And 


1  Gill  v.  Shelley,  2  Russ.  &  My.  27  Beav.  71.  A  child  en  ventre  sa  mere 
336  ;  In  re  Wells's  Estate,  L.  R.  6  Eq.  at  date  of  the  will,  though  not  born 
599;  Paul  v.  Children,  L.  R.  12  Eq.  16  ;  until  after  testator's  death,  may  take 
Dorin  v.  Dorin.  L.  R.  7  H.  L.  568.  See  a  bequest.  Crook  v.  Hill,  3  Ch.  D. 
as  to  "  nephews,"  35  Ch.  D.  551.  773.  And  see  L.  R.  6  H.  L.  265.  Further 

2  Peachey,  Mar.  Settl.  885,  n.,  and  important  illustrations  of  the  equity 
cases  cited  ;  Evans  v.  Davies,  7  Hare,  doctrine  may  be  seen  in  the  modern 
501 ;  Owen  v.  Bryant,  2  l)e  G.,  M.  &  cases  of  Lambe  v.  Eames,  L.  R.  6  Ch. 
G.  697  ;  Hartley  v.  Tribber,  16  Beav.  597  ;  Holt  v.  Sindrey,  L.  R.  7  Kq.  170; 
510;  Leigh  v.  Byron,  1  Sm.  &  Gif.  486;  Savage  v.  Robertson,  L.  R.  7  Eq.  176. 
Tugwell  v.  Scott,  24  Beav.  141  ;  Worts  And  as  to  the  application  of  27  Eliz.  c. 
v.  Cuhitt,  19  Beav.  421.  And  see  Wil-  4,  to  marriage  settlements  for  bastards, 
liamson  v.  Codrington,  1  Ves.  Sen.  511.  see  Clarke  v.  Wright,  6  Hurl.  &  Nor. 
Where  legitimate  children  alone  an-  849.  As  to  legacies  and  devises,  see 
swer  to  the  description  intended,  or  are  Beachcroft  v.  Beachcroft,  1  Madd.  430, 
sufficiently  designated,  they  will  take  and  cases  cited;  Durrant  v.  Friend,  11 
under  the' will.  Hill  v.  Crook,  L.  R.  6  E.  L.  &  Eq  2;  Owen  v.  Bryant,  13 
H.  L.  265.  And  the  ultimate  right  of  E.  L.  &  Eq.  217;  4  Kent,  Com.  414; 
the  crown  in  case  of  illegitimacy  can-  Bagley  v.  Mollard,  1  Russ.  &  My. 
not  be  evaded  by  the  terms  of  a  trust.  581. 

Re  Wilcock's  Settlement,  L.  R.  1  Ch.  D.  *  Occleston    v.   Fullalove,   L.   R.   9 

229.  Ch.   147,  Lord   Selborne  dis. ;  Hastie's 

3  Per  M.  R.,  in  Medworth  v.  Pope,  Trusts,  35  Ch.  D.  728. 

455 


282 


THE   DOMESTIC   RELATIONS. 


[PART   III.] 


our  courts  regard  bastards  as  having  strong  claims  to  equitable 
protection,  notwithstanding  the  criminal  indulgence  of  their  par- 
ents. In  several  important  cases,  specific  performance  of  volun- 
tary settlements  made  by  the  father  in  their  favor  have  been 
decreed.1  And  a  devise,  in  specific  terms,  to  an  unborn  natural 
child  of  a  woman  then  pregnant,  is  sustained  here  as  in  England.2 
But  whether  our  tribunals  would  sanction  a  bequest  to  other  un- 
born illegitimate  children  generally  may  admit  of  doubt,  pro- 
vided such  child  were  never  legitimated  by  subsequent  marriage 
or  adoption.  For,  after  all,  there  must  be  some  discrimination 
made  against  criminal  intercourse.3 

§282.  Guardianship  of  an  Illegitimate  Child. — Testamentary 
guardianship,  of  which  we  are  to  speak  in  another  connection, 
is  of  such  a  nature  that  a  father  cannot  by  his  will  appoint  a 
guardian  for  his  illegitimate  children,  unless  the  statute  so 
directs  ; 4  but  this  does  not  prevent  a  court  from  adopting  such 
a  nomination,  where  no  superior  claimant  petitions  for  the 
trust.5  The  putative  father  of  a  bastard  child  has  been  con- 
sidered a  proper  person  to  petition  for  a  probate  guardian,  as 
against  all  except  the  mother.6 


1  Gardner  v  Heyer,  2  Paige,  1 1  ; 
Bunn  v.  Winthrop,  1  Johns.  Ch.  338 ; 
Harten  v.  Gibson,  4  Desaus.  139;  2 
Kent,  Com.  216;  Shearman  v.  Angel, 
Bail.  Eq.  351  ;  Collins  v.  Hoxie,  9  Paige, 
88.  Illegitimate  children  cannot  take 
under  a  trust  limited  to  "  lawfully  be- 
gotten  children."  Edwards's  Appeal, 
108  Penn.  St.  238.  But  "heirs"  lim- 
ited t"  "  children"  may  include  illegiti- 
mate  children  under  a  fair  construction. 
Howell  ik  Tyler,  91  N.  C.207.  See  also 
King  v.  Davis,  lb.  142. 

-  Knye  v.  Moore,  5  Ilarr.  &  Johns. 
10.  As  to  legacies  and  devises  to  ille- 
gitimate  children  under  American  laws, 
sec  t  Kent,  Com.  413,  414,  and  cases 
cited;  Hughes  v.  Knowltou,  37  Conu. 
429. 

456 


3  A  general  limitation  to  a  woman's 
future  illegitimate  issue  is  against  good 
morals  and  public  policy.  Kiugsley  v. 
Broward,  19  Fla.  722. 

4  Sleeman  v.  Wilson,  L.  R.  13  Eq. 
36.  Guardians  are  of  course  appointed 
on  occasion  for  illegitimate  minors,  as 
for  instance  in  case  such  a  child  has 
a  legacy.  Johns  v.  Eminett,  62  Ind.  533. 
Or  becomes  an  orphan.  46  N.  J.  Eq. 
521. 

5  Ramsay  v.  Thompson,  71  Md.  315. 
Where  "  a  testamentary  guardian  "  is 
simply  a  trustee  for  some  purpose, 
appointment  has  been  made.  147  Penn. 
St.  85. 

0  Pote's  Appeal,  106  Penn.  St.  574. 


[CHAP.  I.]  GUARDIANS   IN   GENERAL.  §  283 


PART    IV. 

GUARDIAN  AND  WARD. 


CHAPTER  I. 

OF    GUARDIANS   IN   GENERAL  ;   THE   SEVERAL  KINDS. 

§  2S3.  Guardianship  Defined ;  Applied  to  Person  and  Estate. 
—  The  guardian  is  a  person  intrusted  by  law  with  the  interests 
of  another,  whose  youth,  inexperience,  mental  weakness,  and 
feebleness  of  will  disqualify  him  from  acting  for  himself  in  the 
ordinary  affairs  of  life,  and  who  is  hence  known  as  the  ward. 
■  Guardianship  usually  applies  to  minor  children ;  and  in  this 
sense  the  guardian  may  be  either  their  natural  protector,  whose 
authority  is  founded  upon  universal  law,  or  some  person  duly 
chosen  to  act  on  their  behalf.  Thus,  the  father  (and  sometimes 
the  mother)  exercises  the  right  of  custody  and  nurture  as  the 
child's  natural  guardian ;  while,  if  the  parents  are  dead,  some 
one  must  be  selected  to  supply  their  place.  And  since  the 
parental  control  does  not  extend  to  the  estate  of  a  minor,  the 
appointment  of  a  guardian  may  be  both  necessary  and  proper, 
when  property  becomes  vested  in  a  child  under  age.  Guardian- 
ship applies  also  at  the  present  day  to  idiots,  lunatics,  spend- 
thrifts, and  the  like ;  and  the  guardian  of  such  person  derives 
his  authority  from  statute  law  and  a  special  appointment.  This 
guardian  is  sometimes  designated  as  the  committee. 

The  law  of  guardianship  is  most  naturally  divided  into  guar- 
dianship of  the  person,  and  guardianship  of  the  estate.  Guar- 
dianship of  the  person  is  a  relation  essentially  the  same  as  that 
of  parent  and  child,  though  not  without  some  important  differ- 

457 


§  284  THE   DOMESTIC    RELATIONS.  [PART  IV. 

ences,  as  we  shall  see  hereafter.  Hence  the  guardian  has  been 
called  "  a  temporary  parent." *  Guardianship  of  the  estate  bears 
a  closer  resemblance  to  trusteeship ;  guardians  and  trustees  be- 
ing alike  bound  to  manage  estates  with  fidelity  and  care,  under 
the  supervision  and  direction  of  the  chancery  courts.  The  same 
person  is  often  guardian  of  both  the  person  and  estate  of  the 
ward ;  but  not  necessarily,  for  these  may  be  kept  distinct.  So, 
too,  there  may  be  joint  guardians,  as  in  other  trusts. 

§  284.  Classification  of  Guardians  in  England  ;  Obsolete  Spe- 
cies. —  The  law  of  guardianship,  in  England,  is  one  of  irregular 
growth.  Guardians,  until  chancery  jurisprudence  became  fully 
developed,  were  recognized  only  for  certain  limited  purposes. 
Their  powers  were  restricted,  and  new  classes  were  created  from 
time  to  time,  as  the  exigency  arose.  One  species  of  guardian- 
ship would  fall  into  disuse  and  another  spring  up  in  its  place. 
Hence  it  is  found  difficult  to  attempt  a  classification,  or  reduce 
the  general  authority  of  guardians  to  a  definite  system.  A  re- 
cent English  text-writer  enumerates  no  less  than  eleven  differ- 
ent kinds  of  guardians,  many  of  which  are  obsolete,  and  others 
of  merely  local  application.2  Among  them  may  be  mentioned 
guardianship  in  chivalry,  an  incident  of  the  feudal  tenure,  more 
in  the  nature  of  a  hardship  than  a  privilege,  so  far  as  the  ward 
was  concerned,  which  was  finally  abolished  in  the  time  of 
Charles  II. ;  guardianship  by  special  custom,  which  was  con- 
fined to  London  and  certain  other  localities,  and  appears  to 
exist  no  longer;  guardianship  by  appointment  of  the  spiritual 
courts,  traces  of  which  still  exist  in  the  appointment  of  adminis- 
trators durante  minore  aitate ;  guardianship  by  prerogative,  appli- 
cable only  to  the  royal  family  ;  and  guardianship  by  election  of 
the  infant,  which  appears  to  us  more  properly  considered  at  this 
day  in  connection  with  the  appointment  of  chancery  guardians. 
J  Wit  guardianship  by  nature  and  nurture,  guardianship  in  socage, 

1   1   Bl.  Com.  460;  2  Kent,  Com.  220.  2  fcfacphers.   Inf.  2  et  seq.,  to  which 

A  money  corporation  maybe  guardian  the  reader  is  referred  for  a  full  account 

in    in"!' in    times,    miller    appropriate  of  these  kinds  of  guardianship,  includ- 

statutes,   notwithstanding  the    ancient  ing  guardianship  under  Stat.  4  &  5  1'. 

objections  "f  a  want  ..f  conscience  or  of  &  M.  c,  8,  alluded  to  in  1  Bl.  Com.  461, 

lings,    in  Minn.  7;  42  Mich,  ami  repealed  by  '.»  Geo.  IV.  c.  31.    See 
also  1  151.  Com.  40 1,  and  llarg.  notes. 

458 


CHAP.  I.]  GUARDIANS   IN    GENERAL.  §  285 

testamentary  guardianship,  and  chancery  guardianship,  require 

special  consideration,  and  these  will  be  taken  up  in  order. 

§  285.  English  Doctrine;  Guardianship  by  Nature  and  Nurture. 
—  Guardianship  by  nature  and  nurture  denotes  hardly  more  or 
less  than  the  natural  right  of  parents  to  the  care  and  custody  of 
their  children.  It  has  been  usual  to  treat  of  guardians  by  nature 
as  distinct  from  guardians  by  nurture ;  but  in  reality  the  latter 
constitute,  for  practical  purposes,  only  a  species  of  the  former. 
Mr.  Macpherson  considers  them  together,  and  doubts  whether 
guardianship  by  nature,  as  known  in  the  old  law,  has  existed 
since  the  time  of  Charles  II.,  when  feudal  tenures  were  abol- 
ished ;  for  it  appears  to  have'  originated  in  the  practice  of  sell- 
ing the  marriage  of  the  heir.1 

Guardianship  by  nature  and  nurture  belongs  exclusively  to 
the  parents  :  first,  to  the  father,  and,  on  his  death,  to  the  mother. 
The  father's  right  was  formerly  preferred  to  the  mother's  in  all 
cases ;  while  the  modern  tendency  is  otherwise.  The  office  of 
natural  guardian  lasted  during  the  minority  of  the  child ;  but 
guardianship  by  nurture  ceased  when  he  attained  the  age  of 
fourteen.  So  guardianship  by  nature  applied  to  the  heir  appar- 
ent or  presumptive,  and  guardianship  by  nurture  to  the  other 
children.  Guardianship  by  nature  was  something  higher  than 
guardianship  by  nurture.2  But  it  is,  nevertheless,  clear  that 
the  father  has  a  right,  recognized  by  general  law,  to  the  cus- 
tody of  all  his  children,  not  only  during  the  period  of  nurture, 
but  until  the  age  of  majority.  So,  too,  the  mother,  if  not  super- 
seded by  the  infant's  election  at  fourteen,  or  by  the  appointment 
of  a  new  guardian,  has,  in  the  absence  of  a  father,  the  legitimate 
care  of  the  child  for  the  same  period.3 

The  authority  of  such  guardians  extends  only  to  the  ward's 
person.  They  have  no  right  to  intermeddle  with  his  property.4 
Blackstone  says  that,  if  an  estate  be  left  to  an  infant,  the  father 

1  Macpbers.  Inf.  52,  58.     See  also  1  *  1  Bl.  Com.  461,  and  Harg.  notes; 

Bl.  Com.  461,  and  Harg.  notes  1  &  3  ;  2  Kent,  Com.  220,  221 ;   Hyde  v.  Stone, 

2  Kent,  Com.  220,  221.  7  Wend.  354;    Kline  v.  Beebe,  6  Conn. 

2  1  Bl.  Com.  461,  and  Harg.  notes;  494;    Fonda  v.  Van  Home,   15  Wend. 

2  Kent,  Com.  220,  221.  631.      And   see   Wall  v.   Stanwick,   34 

8  Macphers.     Inf.     61,    65;     supra,  Ch.  D.  763,  as  to  liability  for  rents  and 

§§  245,  252.  profits  of  land. 

459 


§  286  THE   DOMESTIC   RELATIONS.  [PART  IV. 

is,  by  common  law,  the  guardian,  and  must  account  to  his  child 
for  the  profits.  But  this  is  only  because  the  law  holds  him  and 
all  others  responsible  as  a  quasi  guardian ;  and  it  is  well  settled 
at  the  present  day,  that  if  a  child  becomes  vested  with  property 
during  his  father's  lifetime,  there  is  no  one  strictly  authorized  to 
take  it  until  a  guardian  has  been  duly  appointed. 

Guardianship  by  nature  and  nurture  is  inferior  to  guardian- 
ship in  socage ;  and  it  yields  to  every  kind  of  guardianship 
which  exists  by  strict  appointment,  so  far  as  the  ward's  prop- 
erty is  concerned,  though  not  necessarily  as  to  his  person. 

§  286.  English  Doctrine  ;  Guardianship  in  Socage.  —  Guar- 
dianship in  socage  arises,  at  common  law,  whenever  an  infant 
under  fourteen  acquires  title  to  real  estate ;  the  chief  object  of 
the  trust  being  the  protection  of  such  property  and  the  instruc- 
tion of  the  young  heir  in  the  pursuit  of  agriculture.1  It  applies 
only  when  the  infant  inherits  laud,  and  cannot  exist  if  his  es- 
tate be  merely  personal.  His  title,  too,  must  be  legal  and 
not  merely  equitable;  hence  it  would  seem  that  there  cannot  be 
a  guardian  in  socage  where  the  interest  of  the  ward  is  ouly  re- 
versionary.2 This  species  of  guardianship  was  anciently  assign- 
able, so  far  at  least  as  the  custody  of  the  infant  was  concerned  ; 
but  by  the  doctrine  and  practice  of  later  times  it  became 
regarded  as  a  strictly  personal  trust,  neither  transmissible  by 
succession,  nor  devisable,  nor  assignable.3 

The  duty  of  the  guardian  in  socage  is  to  take  possession  of 
the  heir's  person  and  real  estate,  to  receive  the  rents  and  profits 
until  the  heir  reaches  the  age  of  fourteen,  to  keep  his  evidences 
of  title  safely,  and  to  bring  him  up  well.4  His  powers  are  com- 
mensurate with  his  duties.  He  acquires  by  virtue  of  his  office 
an  actual  estate  in  the  ward's  land,  though  not  to  his  own  use  ;5 
In:  may  gain  a  settlement  by  actual  residence  upon  it;6  and  he 
can  grant  leases  terminable,  and  perhaps  even  void,  when  the 

1    l    Bl.   Com.  461,  and   Harg.  n.;2  4  Co.  Litt.  89  ;  Macphers.  Inf.  28. 

Kent, Com   220;   Dagley  v.  Toll erry,  1         5  Plowd.   c.    293;    Macphers.    Inf. 

P.  Wins.  285.  28  ;    Hex  v.  Sutton,  8  Ad.  &  El.  597. 

-  M.i-,, Imps    inf.  19;  2  Bl.  Com.  88.  8  Rex  ».  Oakley,  10  East,  491 ;  Mao 

;;  Macpheru.   Inf.  20  et  eeq.\  2    Bl.  phers.  Inf.  28. 
Com.   161,  and  Harg.  n. ;  2  Kent,  Com. 

22.'!. 

160 


CHAP.  I.]  GUARDIANS   IN   GENERAL.  §  287 

ward  reaches  the  age  of  fourteen.1  A  guardian  in  socage  cannot 
be  removed  from  office,  but  the  ward  may  supersede  him,  at  this 
age,  by  a  guardian  of  his  own  choice.2 

Guardianship  in  socage  has  been  said  to  extend  to  the  heir's 
personal  property ;  but  there  is  insufficient  legal  authority  for  such 
a  supposition,  though  it  is  likely  that  the  farm-stock  and  house- 
hold chattels  of  the  ward  were  included  ;  and  when  this  guardian- 
ship was  common,  personal  property  consisted  of  little  else.3 

One  peculiarity  of  this  guardianship  was  that  the  trust  be- 
longed only  to  such  next  of  blood  to  the  child  as  could  not 
possibly  inherit,  and  it  devolved  upon  him  without  appoint- 
ment ;  the  common  law,  with  a  characteristic  distrust  of  human 
nature,  deeming  it  imprudent  to  confide  the  child's  interests  to 
one  who  expected  the  succession.  For,  as  Fortescue  and  Sir 
Edward  Coke  affirmed,  to  commit  the  custody  of  the  infant  to 
such  a  person  was  like  giving  up  a  lamb  to  a  wolf  to  be  de- 
voured.1 Guardianship  in  socage  has  passed  into  disuse,  though 
it  cannot  be  said  to  have  been  actually  abolished. 

§  287.  English  Doctrine  ;  Testamentary  Guardianship.  —  Tes- 
tamentary guardianship  was  instituted  by  the  statute  of  12 
Car.  II.  c.  24,  and  for  this  reason  testamentary  guardians  are 
sometimes  called  statute  guardians.5  This  statute  provided  that 
any  father,  whether  an  infant  or  of  full  age,  might,  by  deed 
executed  in  his  lifetime,  or  by  his  last  will  and  testament,  dis- 
pose of  the  custody  and  tuition  of  his  child,  either  born  or 
unborn,  to  any  person  or  persons  in  possession  or  remainder, 
other  than  popish  recusants :  such  custody  to  last  till  the  child 
attained  the  age  of  twenty-one,  or  for  any  less  period,  and  to 
comprehend,  meantime,  the  entire  management  of  his  estate, 
both  real  and  personal.  So  far  as  popish  recusants  are  con- 
cerned, this  statute  has  since  been  modified  ;  and  all  religious 
disabilities  as  to  the  office  are  now  removed ; 6   and  since  the 

1  Bac.    Abr.    Leases,   i.    9;   1   Id.         *  Co.  Litt  88  b  ;  1  Bl.  Com.  462. 
Raym.   131  ;  Rex  v.  Sutton,  5   Nev.  &  6  1  Bl.  Com.  462. 

M.  353 ;  Macphers.  Inf.  35,  36.  6  31  Geo.  III.  c.  32  ;  4  Mont.  &  C. 

2  Co.  Litt.  89a;  Macphers.  Inf.  41.       687;    Corbet  v.  Tottenham,    1    Ball   v 
8  Macphers.  Inf.  31  ;  Bedell  v.  Con-    B.  59. 

6table,  Vaugh.  185.     But  see  Harg.  n. 
67  to  Co.  Litt.  89. 

461 


§  287  THE    DOMESTIC    RELATIONS.  [PART  IV. 

statute  of  1  Vict.  c.  26,  an  infant,  though  the  father,  cannot 
exercise  the  right  of  testamentary  appointment ;  otherwise,  the 
statute  remains  in  force.  Under  this  English  law  it  matters 
not  what  are  the  father's  religious  opinions.1  But  a  mother 
cannot  appoint,  nor  a  putative  father,  nor  a  person  in  loco 
parentis.2 

The  important  question  arises,  under  this  statute,  whether 
the  words  "  by  deed  executed  in  his  lifetime "  permits  the 
father  to  dispose  of  his  children  by  any  instrument  not  testa- 
mentary he  may  see  fit  to  make.  Lord  Eldon  was  of  the 
opinion  that  he  could  not,  but  was  confined  to  a  testamentary 
instrument  in  the  form  of  a  deed,  which  cannot  operate  during 
life  and  may  be  revoked  at  pleasure  ;  or  to  a  will.3  Such  is 
doubtless  the  English  law  at  the  present  day.4 

Testamentary  guardianship  gives  the  custody  of  the  ward's 
person,  and  of  all  his  real  and  personal  estate ;  and  it  embraces 
not  only  such  property  as  comes  to  the  ward  through  descent, 
devise,  bequest,  or  inheritance  from  the  father,  but  all  that  he 
may  acquire  from  any  person  whomsoever,  and  whether  real  or 
personal.  This  shows  that  the  guardian's  interest  is  derived  not 
from  the  father,  but  from  the  law  itself,  for  the  father  could 
give  him  no  interest  over  that  which  was  never  his  own.5 

Besides  having  the  advantage  of  full  control  over  the  ward's 
eutire  estate,  the  testamentary  guardian  stands  better  than  the 
guardian  in  socage,  inasmuch  as  his  power  lasts  until  the  ward 
readies  his  majority,  unless  the  father  has  seen  fit  to  limit  his 
trust  to  a  less  period. 

Testamentary  guardianship,  as  now  understood,  was  unknown 
to  the  common  law.  Lord  Alvanley  said,  in  Ex  parte  Ilchester : 
"It  is  clear,  by  the  common  law,  a  man  could  not,  by  any  tes- 
tamentary disposition,  affect  either  his  land  or  the  guardianship 
of  his  children.     The  latter  appears  never  to  have  been  made 

1  Villareal  v.  Mellish,  2  Swanst.  538.  4  Macpherson  intimates  a  different 

-  Macphers.    Inf.    M;    1    Bl.   Com.  opinion.     See  Macphers.    Inf.  84;  Le- 

462,Harg.n.;   Vaugh.  180;  8  Atk.  519;  cone  v.  Sheires,  1  Vern.  442.    And  see 

l  upra           I  Desrihes  v.  Wilmer.  69  Ala.  25 ;  §  299. 

1  Ei  parte  Karl  of  Qchester,  7  Vea.  °  Macphers.  Inf.  91.     See  also  Gil- 

867  ;  Earl  <■(  8haftenbary  v.  Lady  Han-  liat  t>.  Gilliat,  3  Pbillim.  222. 

nam,  Finch  Rep.  823. 

402 


CHAP.  I.]  GUARDIANS    IN    GENERAL.  §  288 

the  subject  of  testamentary  disposition  till  the  statute  12 
Charles  II."  l  But  it  seems  probable,  from  some  expressions  of 
Lord  Coke,  that,  so  far  as  the  custody  of  the  ward's  person  was 
concerned,  though  not  as  to  his  lands,  testamentary  dispositions 
were  not  unknown  to  the  old  common  law,  and  that  this  testa- 
mentary guardian,  sometimes  confounded  with  the  guardian  for 
nurture,  had  the  care  of  the  child  until  he  reached  the  age  of 
fourteen,  with  power  to  dispose  of  his  chattels.2 

§  288.  English  Doctrine  ;  Chancery  Guardianship. — Guardians 
by  appointment  of  a  court  of  equity,  or  chancery  guardians,  as 
they  are  termed,  have,  within  the  last  century,  assumed  such 
importance  as  almost  to  supersede,  in  the  English  practice,  the 
other  kinds,  except  perhaps  the  testamentary  guardian.  The 
earliest  known  instance  of  such  an  appointment  occurred  in 
1696. 3  Blackstone  speaks  of  the  practice  in  his  day  as  appli- 
cable chiefly  to  guardians  with  large  estates,  who  sought  to 
indemnify  themselves  and  to  avoid  disagreeable  contests  with 
their  wards,  by  placing  themselves  under  the  direction  of  the 
court  of  chancery.4  The  origin  of  this  guardianship  is  obscure. 
Mr.  Hargrave  considered  it  an  act  of  usurpation  by  the  Lord 
Chancellor,  but  admitted  the  jurisdiction  to  have  been  fully 
established  in  his  time.5  Fonblanque  warmly  controverts  the 
charge  of  usurpation,  claiming  that  the  jurisdiction  exercised 
by  the  court  of  chancery  over  infants  flows  from  its  general 
authority,  as  delegated  by  the  crown.6  This  latter  view  has 
met  with  the  best  judicial  approval;  for,  as  Lord  Hardwicke 
and  others  have  expressed  it,  the  State  must  place  somewhere 
a  superintending  power  over  those  who  cannot  take  care  of 
themselves ;  and  hence  chancery  necessarily  acts,  representing 
the  sovereign  as  parens  patriae.1  From  the  peculiar  nature  and 
restrictions  of  the  other  kinds  of  guardianship,  many  orphans, 
whose  fathers  had  failed  to  appoint  a  testamentary  guardian  for 

1  7  Ves.  370.  e  2  Fonb.   Eq.  228,  n.,  5th  ed. ;    2 

2  Co.  Litt.  87  b ;  Co.  Cop.  §  23  ;  Mac-     Story,  Eq.  Jur.  §  1333. 

phers.  Inf.  68.  '  Butler    v.    Freeman,   Ambl.    301. 

3  Case  of  Hampden.  See  Co.  Litt.  See  Lord  Thurlow,  in  Powell  v.  Cleaver, 
88  b,  Harg.  n.  2  Bro.  C.  C.  499  ;  Lord  Eldon,  in  De 

*  1  Bl.  Com.  463.  Manneville  v.  De  Manneville,  10  Ves 

5  Co.  Litt.  89  a,  Harg.  n.  70  52. 

463 


§  288  THE   DOMESTIC   RELATIONS.  [PART  IV. 

them,  would  be  otherwise  without  protection  either  of  person  or 
property.  Whatever  may  be  the  origin  of  the  jurisdiction  by 
virtue  of  which  courts  of  chancery  appoint  guardians  in  such 
cases,  the  right  of  making  such  appointments,  and  in  general  of 
controlling  the  persons  and  estates  of  minors,  has  long  been 
firmly  established,  and  cannot  at  this  day  be  shaken. 

An  infant  is  constituted  a  ward  in  chancery  whenever  any 
one  brings  him  in  as  party  plaintiff  or  defendant,  by  a  bill  ask- 
ing the  directions  of  the  court  concerning  his  person  or  estate, 
or  the  administration  of  property  in  which  he  is  interested.1 
In  this  character  he  is  treated  as  under  its  special  protection. 
Again,  a  petition  may  be  presented  for  the  appointment  of  a 
chancery  guardian,  alleging  that  the  infant  has  estate,  real  or 
personal.  But  the  mere  appointment  of  a  guardian,  in  this  in- 
stance, will  not  make  him  a  ward  in  chancery.2  Where  a  suit 
is  pending,  the  court  appoints  a  guardian  of  the  person  only ;  in 
other  cases  a  guardian  of  the  person  and  estate.3  So  chancery 
will  appoint  a  guardian  on  petition,  where  testamentary  guar- 
dians decline  to  act ;  and,  if  necessary,  determine  on  petition  the 
right  of  a  guardian  already  appointed.4 

As  to  the  general  jurisdiction  of  chancery  over  infants,  it  may 
be  observed  that  in  the  appointment  and  removal  of  guardians* 
in  providing  suitable  maintenance,  in  awarding  custody  of  the 
person,  and  in  superintending  the  management  and  disposition 
of  estates,  the  chancery  court  wields  large  powers  for  the  benefit 
of  the  young  and  helpless.  This  jurisdiction,  being  clear  of 
technical  rules  and  dependent  upon  the  discretion  of  the  Chan- 
cellor, adapts  itself  far  more  readily  to  the  various  grades  of 
I  iety,  the  intention  of  testators,  the  wants  and  wishes  of  the 
infants  themselves,  and  the  different  varieties  of  property,  than 
all  the  other  guardianships  combined.5  By  compelling  trust 
officers  to  give  security,  to  invest  under  its  direction,  and  to 
keep  regular  accounts,  the  court  exerts  a  wholesome  restraint 
on  the  ward's  behalf,  while  at  the  same  time  it  arms  the  guar- 
'liun  against  all  attacks  of  a  capricious  heir,  by  affording  its 
Banction  to  his  official  acts. 

1   Macphew,  Inf.  103;  Ambl.  302,  n.  8  Tb.  105.  «  76.  104. 

-  Macphers.  Inf.  104.  5  1  Bl.  Com.  463,  Harg.  n. 

464 


CHAP.  I.]  GUARDIANS   IN   GENERAL.  §  289 

Chancery  guardians  are,  in  general,  only  appointed  where 
there  is  property  ;  but  this  is  because  guardianship  can  scarcely 
be  necessary  otherwise.  Chancery,  as  Lord  Eldon  observed, 
cannot  take  on  itself  the  maintenance  of  all  the  children  in  the 
kingdom.1  Hence  persons  desiring  to  call  in  the  authority  of 
the  court  for  the  protection  of  an  infant  sometimes  resort  to  the 
expedient  of  settling  a  sum  of  money  upon  him.2  The  great 
objection  to  chancery  guardianship  is  its  expense ;  and  the 
lavish  outlay  of  money  which  becomes  requisite  at  every  step 
renders  the  practical  benefit  to  the  minor  often  questionable. 
Less  cumbrous  machinery  would  remedy  this  evil.  There  are 
some  English  statutes  relating  to  the  poor,  the  employment  of 
apprentices,  and  the  like,  which,  in  connection  with  the  writ  of 
habeas  corpus,  are  designed  tc  supersede,  in  a  measure,  the  neces- 
sity of  personal  guardianship,  for  those  who  are  without  property 
and  yet  need  protection.3 

§  289.  English  Doctrine  ;  Guardianship  by  Election  of  Infant. 
—  Guardianship  by  election  of  the  infant  deserves  a  passing 
notice.  We  have  seen  that  the  infant  in  socage  had  the  right 
of  choosing  a  guardian  at  the  age  of  fourteen.  This  age  was 
recognized  also  as  the  limit  to  guardianship  by  nurture  ;  the 
law  choosing  to  yield  somewhat  to  the  ward's  discretion  thence- 
forth.4 The  socage  ward  might  therefore,  if  he  had  no  testa- 
mentary guardian,  choose  one  to  act  on  his  behalf  until  majority, 
by  executing  a  deed  for  that  purpose.  But  little  is  really  known 
on  this  subject,  and  the  instances  mentioned  in  the  books  are 
exceedingly  rare.5  Blackstone  again,  speaking  of  guardians  for 
nurture,  adds  that,  in  default  of  father  or  mother,  the  ordinary 
usually  assigns  some  discreet  person  to  take  care  of  the  infant's 

1  Wellesler    v.    Duke   of    Beaufort,  infants  who  are  not  wards  of  the  court 

2  Russ.  21.  and  have  no  property  ;  but  it  is  limited 

'l  Macphers.  Inf.  103.  to  the    appointment   and    removal   of 

Though  doubts  were  formerly  enter-  guardians,    and    does    not     extend    to 

tained,  it   appears   clear   that   English  schemes  for  their  maintenance  or  edu- 

chancerv  could  exercise  some  very  lim-  cation.     McGrath  Re,  [1893]  1  Ch.  143. 

ited  interference  over  the  guardians  of  3  1  Bl.  Com.  463,  Harg.  n.,  and  acts 

children  who  had  no  property.    Spence  there  enumerated. 

Re,  2  Ph.  247  ;  Scanlan  Re,  40  Ch.  D.  *  Supra,  §  285. 

200.     By  virtue  of  this  power,  aided  by  5  Co.  Litt.   88  b,  Harg    n.  16;  Mac- 

the  new  act  of  1886  (49  &  50  Vict.  c.  27),  phers.  Inf.  77. 

chancery  has   now  a  jurisdiction  over 

30  465 


§  290  THE   DOMESTIC    RELATIONS.  [PART  IV. 

personal  estate,  and  to  provide  for  his  maintenance  and  educa- 
tion.1 The  practice  in  the  spiritual  court  was  to  permit  the 
minor,  when  of  suitable  age,  to  nominate  his  guardian,  subject 
to  its  approval.  This  was  but  a  limited  privilege,  after  all, 
though  it  seems  to  have  been  granted  to  all  children  between 
seven  and  twenty-one.2  It  is  manifestly  different  from  the 
right  of  election  allowed  the  socage  ward.  The  authority  of 
spiritual  courts  to  appoint  a  guardian  of  the  person  and  estate 
was  emphatically  denied  by  Lord  Hardwicke,  and  chancery 
afterwards  took  this  guardianship  completely  into  its  own  keep- 
ing. The  infant,  above  the  age  of  fourteen,  is  still  permitted 
to  nominate  his  guardian  before  the  court  of  chancery ;  but 
his  nomination  does  not  supersede  the  authority  of  the  court, 
whether  he  be  a  socage  ward  or  not.3  Guardianship  by  elec- 
tion of  the  infant  has  thus  become  a  misnomer,  for  he  does  not 
absolutely  elect. 

§  290.  Classification  of  Guardians  of  Minors  in  the  United 
States  ;  Nature  and  Nurture,  Socage,  and  Testamentary.  —  Guar- 
dianship in  the  United  States  differs  considerably  from  guar- 
dianship in  England.  Here  the  whole  subject  is  controlled  in 
a  great  measure  by  local  statutes.  There  are  fewer  kinds  of 
guardians  found  in  American  practice,  though  some  of  the  more 
important  classes  are  recognized  to  a  limited  extent.  Thus 
guardianship  by  nature  and  nurture,  or  the  parental  right  of 
custody,  prevails  in  most  of  the  States  with  the  restraints  upon 
meddling  witli  a  child's  property  already  noticed.4  But  as  all 
children,  male  and  female,  inherit  alike  with  us,  guardianship 
by  nurture  is  not  here  so  clearly  distinguished  from  guardian- 
ship by  nature,  as  in  the  English  practice.5 

Guardianship  in  socage  was  never  common  in   the   United 

1  1  Bl.  Com.  4G1.  the  ijunsi  guardian's  liability.     Bedford 

:   Fitzgib.  104;  Co.  Litt.  88  b,  Harg.  v.  Bedford,  1:50  111   354. 

"    16.  5  2  Kent,  Com.  221;  Reeve,  Pom. 

»  Co.  Litt.  886,  Harg.n.  16;  Hughes  Rel.    815;    Macready    v.    Wilcox,  33 

t.  Science,  3  Atk.  631,   Macphers.  Inf.  Conn.  321.     That  the  grandfather  or 

"i    78.  grandmother,   when   the  next  of  kin, 

1  Supra,  $S   255,   285.     But   here  as  m;iVi  ,,„  fche  death  of  father  or  mother, 

in    England,   intermeddling   with    the  be  guardian  by  nature,  see  Darden  v. 

ward's  property  Bubjecta  the  parent  to  Wyatt,  15  6a.  4  14;  Lamar  v.  iMicou, 


114  U.  S.  218,  222. 


466 


CHAP.  I.]        GUARDIANS  IN  GENERAL.  §  290 

States.  But  traces  of  its  existence  are  to  be  found  in  New  York 
and  New  Jersey.  Thus,  in  1809,  a  guardian  in  socage,  in  New 
York,  was  permitted  to  bring  trespass  and  ejectment.1  This 
species  of  guardianship  is  now  almost  wholly  superseded.  In 
fact,  it  could  seldom  have  arisen,  since  half-blood  and  whole- 
blood  relatives  in  this  country  inherit  alike  ;  so  that  a  blood  re- 
lation who  cannot  possibly  inherit  could  rarely  be  found,  to 
assume  the  duties  of  the  office.2  A  father  who  holds  lands  for 
life,  with  the  remainder  vested  in  his  children,  cannot  be  their 
guardian  in  socage.3  And  the  lease  of  his  ward's  lands  by  any 
such  guardian  may  be  defeated  by  the  appointment  of  an- 
other guardian,  pursuant  to  the  statute,  who  elects  to  avoid  it.4 
The  powers  and  duties  of  the  guardian  in  socage,  where  recog- 
nized in  this  country,  have  been  limited  to  the  ward's  real  estate 
and  the  personalty  connected  therewith,  such  as  animals  and 
farm  implements,  and  do  not  extend  to  the  ward's  general  per- 
sonal property ; 5  and  all  such  rights  are  superseded  by  those  of 
an  ordinary  legal  guardian.6 

We  have  testamentary  guardians,  with  essentially  the  same 
powers  and  duties  as  in  England.  The  statute  of  12  Charles  II. 
has  been  enacted  in  most  of  the  United  States,  with  the  lan- 
guage somewhat  changed.  No  religious  disabilities  are  imposed 
in  our  law.  But  while  some  States  follow  the  words  of  the 
ancient  statute  as  to  minor  fathers,  the  right  is  elsewhere  re- 
stricted to  such  as  are  competent  to  make  a  will ;  and  this  is  a 
preferable  expression.  For  precise  modifications  the  student 
should  consult  the  laws  of  his  own  State.  Some  statutes  use 
the  words  "  deed  or  will."  The  Ohio  statute  drops  the  word 
"  deed  "  altogether.  And  not  uncommonly  is  it  found  in  America 
that  testamentary  guardians  can  only  be  appointed  by  a  will 
executed  with  the  usual  solemnities.7 

1  Byrne  v.  Van  Hoesen,  5  Johns.  66.  3  Graham  v.  Houghtalin,  1  Vroom, 
See  also  Jackson  v.  I)e  Walts,  7  Johns.     552. 

157.     The  widowed  mother  of   an  in-  4  Emerson  v.  Spicer,  46  N.  Y.  594. 

fant  who  owns   real   estate   is   in   this  fi  Foley  v .  Mutual  Life  Co.  138  N.  Y. 

State    a    general    guardian    with    the  333.     Such,  too,  seems  to  have  been  the 

rights,  powers,  and  duties  of  a  guardian  English  common  law.     §  286. 

in  socage.     Hynes  Re,  105  N.  Y.  560.  6  Stimsou,  §  1103. 

2  2  Kent,  Com.  222,  223 ;  Reeve,  7  See  2  Kent,  Com.  225,  226  ;  Hoyt 
Doro  Rel.  315,  316.  v.  Hellen,  2   Edw.  Ch.  202;  Matter  of 

467 


§291 


THE   DOMESTIC    RELATIONS. 


[PART  IV. 


The  right  of  testamentary  appointment  is  still  confined  to 
the  father  in  most  States.  But  an  Illinois  statute  permits  the 
mother,  if  not  remarried,  to  appoint  such  a  guardian,  provided 
no  appointment  was  previously  made  by  the  father.  In  New 
York,  the  consent  of  the  mother,  if  living,  was  lately  required 
to  a  testamentary  appointment  by  the  father  ; 1  a  provision  after- 
wards repealed.2  So,  too,  the  English  principle  prevails,  that 
the  testator  can  appoint  a  guardian  over  his  own  children  only  ; 
the  right  extending,  however,  to  posthumous  offspring.  He 
cannot  appoint  guardians  for  other  children,  though  he  give 
them  his  property.3  But  where  a  statute  provides  that  a  child 
may  be  adopted  by  one  with  the  same  rights  as  if  the  offspring- 
were  his  own,  it  seems  just  that  the  father,  thus  constituted, 
should  have  the  right  of  appointing  a  testamentary  guardian 
for  his  adopted  child,  just  the  same  as  for  other  children.4  A 
grandfather  has  no  right  to  appoint  a  testamentary  guardian.5 

§  291.  American  Doctrine  ;  Chancery  and  Probate  Guardian- 
ship. —  Chancery  guardianship  may  be  considered  as  adopted 


Pierce,  12  How.  Pr.  532;  Vanartsdalen 
v.  Vauartsdalen,  14  Perm.  St.  384 ; 
Wardwell  v.  Ward  well,  9  Allen,  518. 
In  New  York  the  father's  right  to  ap- 
point a  testamentary  guardian  is  de- 
rived exclusively  from  the  local  statute. 
Thomson  v.  Thomson,  55  How.  (N.  Y.) 
Pr.  494.  A  mother  has  no  power  to 
appoint  unless  the  statute  is  explicit. 
Ex  p<irt<-  Bell,  2  Tenn.  Ch.  27.  Even 
in  appoint  incuts  by  "deed,"  the  deed 
does  not  take  effect  until  the  parent's 
death,  ami  the  guardian  named  must 
then  qualify  like  any  testamentary 
guardian.  84  Cal.  592.  So,  too,  §  287. 
( loDceming  the  testamentary  guardian- 
ship of  illegitimate  children,  see  §  282. 
Such  an  intended  guardianship  is  some- 
times I"  I"-  inferred,  or  the  contrary, 
from  the  general  and  indirect  expres- 
sions of  the  will.     §  299. 

Sec    New    fork   statute  authorizing 

the  surviving  parent  to  appoint  a  testa- 
mentary guardian,  77  Hun,  201. 

1   \    v.  Stat.  1862,  c.  1 72.     And  see 
Backetl  i  Estate,  l  Tuck.  (N.  V.  Surr.) 

84. 

468 


2  Stat.  1871,  construed  in  Fitzgerald 
v.  Fitzgerald,  31  N.  Y.  Supr.  370. 

3  Brigham  v.  Wheeler,  8  Met.  127; 
2  Kent,  Com.  225. 

4  As  to  divorced  parents,  the  ques- 
tion of  testamentary  guardianship  is 
presented  under  a  new  aspect.  Where 
a  mother  is  allowed  by  statute  or  other- 
wise to  dispose  of  the  guardianship  of 
her  minor  child,  by  will,  she  is  assumed 
to  have  been  the  survivor  of  her  hus- 
band. A  divorced  wife,  invested  with 
the  custody  of  the  minor  child  by  order 
of  court,  has  presumably,  as  such,  no 
real  right  to  appoint,  especially  if 
divorced  for  her  fault.  McKinney  v. 
Noble,  37  Tex.  731.  Divorce,  it  would 
appear,  does  not  per  se  take  away  the 
father's  power  to  appoint  a  testament- 
ary guardian.  Sec  Hill  v.  Hill,  49  Md. 
450,  where  custody  of  the  child  was 
given  to  the  father  with  a  right  of  ac- 
cess to  the  mother. 

5  Fullerton  p.  Jackson,  5  Johns.  Ch. 
278;  Ex  />">■/<■  Bell,  2  Tenn.  Ch.  327. 
Sec  further,  as  to  the  appointment  of 
testamentary  guardians,  c.  2,  jiust. 


CHAP.  I.]  GUARDIANS   IN   GENERAL.  §  291 

to  some  extent  in  this  country.  The  supreme  courts  in  many 
States  have  now  full  chancery  powers,  as  in  England,  over  the 
persons  and  estates  of  infants  ;  they  may  order  investments, 
decree  care  and  custody  of  the  person,  take  children  under  their 
protection  as  wards  of  the  court  in  certain  cases,  regulate  the 
conduct  of  guardians,  and  otherwise  exercise  the  important 
functions  which  vest  in  the  English  equity  courts.  But  Eng- 
lish chancery  jurisprudence  is  one  thing,  and  that  of  the  United 
States  another.  While  in  one  country  the  appointment,  re- 
moval, and  general  supervision  of  guardians  belong  immediately 
to  the  equity  courts,  in  the  other  a  special  tribunal  is  usually 
created  by  local  statute  for  such  matters.  It  is  this  special 
tribunal  —  somewhat  resembling  the  English  ecclesiastical  court 
—  which  alone  issues  letters  of  guardianship,  revokes  them,  and 
superintends  trust  accounts  in  the  first  instance.  The  guardians 
thus  chosen,  have,  in  general,  the  rights  and  duties  of  chancery 
guardians  of  the  person  and  estate. 

The  propriety  of  distinguishing  between  chancery  guardians 
and  those  appointed  by  the  special  courts  of  this  country  — 
whether  known  as  the  probate,  orphans',  ordinary's  or  surro- 
gate's court  —  is  obvious  when  the  origin  of  our  probate  juris- 
diction is  considered.  At  the  time  America  was  colonized, 
chancery  guardianship  was  unknown  in  England.  The  eccle- 
siastical or  spiritual  courts,  independent  of  all  temporal  author- 
ity, controlled  the  estates  of  orphans  and  their  deceased  parents- 
The  necessity  of  some  tribunal  with  probate  jurisdiction  was 
soon  apparent  to  our  ancestors ;  but,  rejecting  the  idea  of  a 
church  establishment,  they  distributed  probate  and  equity 
powers  among  the  common-law  courts.  Their  judicial  system 
was  at  first  simple :  that  of  local  county  courts  with  a  supreme 
tribunal  of  appeal.  With  the  growth  of  population  came  a 
division  of  these  powers  in  the  inferior  courts.  New  county 
tribunals  were  erected  for  business  appertaining  to  estates  of 
the  dead,  testamentary  trusts,  and  the  care  of  orphans ;  a  blend- 
ing, as  it  were,  of  ecclesiastical  and  equity  functions.  The  old 
county  courts  were  left  to  their  common-law  jurisdiction,  while 
the  supreme  tribunal  retained  control  over  them  all,  exercising 
appellate  powers  in  common  law,  equity,  and  ecclesiastical  suits. 

469 


§  291  THE   DOMESTIC   RELATIONS.  [PART  IV. 

Such,  in  a  word,  is  the  general  origin  of  guardianship  by  judi- 
cial appointment  in  this  country.1  While  the  English  chancery 
court  was  slowly  extending  its  rights  over  the  persons  and 
estates  of  infants,  another  system  was  in  process  of  growth  on 
this  side  of  the  water,  borrowing  from  English  law  as  occasion 
offered,  and  adapting  itself  to  the  increasing  wants  of  our  own 
community.  This  system,  fostered  doubtless  by  a  strong  preju- 
dice against  chancery  practice,  with  its  expensiveness  and  pro- 
lixity of  pleadings,  a  prejudice  widely  prevalent  during  the  last 
century,  especially  in  New  England,  spread  gradually  into  the 
New  States  and  Territories,  the  creature  of  statute  law  wherever 
it  went. 

Much  confusion  has  arisen  in  our  courts  wherever  this  dis- 
tinction has  not  been  kept  in  view.  The  law  of  guardianship  is 
often  discussed  as  though  we  inherited  the  English  chancery 
system,  when  in  truth  our  usual  practice  is  without  its  counter- 
part abroad.  The  only  American  text-writers  of  authority  on 
this  subject,  Reeve  and  Kent,  have  contributed  to  this  per- 
plexity. The  former  was  not  precise  in  his  classification.2  The 
latter  unwisely  confused  American  and  English  appointments, 
applying  the  terra  chancery  guardians  to  both.3  But  the  courts 
have  sometimes  perceived  the  necessity  of  a  separate  name  for 
guardians  appointed  by  courts  of  probate  jurisdiction.  Accord- 
ingly, they  have  been  called  guardians  of  the  person  and  estate  ; 4 
but  this  name  is  quite  as  appropriate  to  others.  So,  too,  they 
are  designated  as  statute  guardians;  but  there  are  statute  mod- 
ifications applied  to  all  kinds  of  guardians,  and  besides,  this 
name  was  long  ago  bestowed  by  English  writers  upon  tcstamen- 
tary  guardians?  We  shall  apply,  then,  in  these  pages,  for  want 
of  something  better,  the  distinguishing  term  probate  guardians, 
this  being  sufficiently  precise  and  suggestive;  though  it  is 
admitted  that  the  appointing  power  is  not  lodged  in  tribunals 
styled  probate  courts  in  every  State,  nor  necessarily  separated 
from  courts  exercising  common -law  functions. 

1  S(^   Smith    (Mass.),  Prob.   l'ract.  4  See    Arthur's    Appeal,    1    Grant 

1-5;  '.i  Mn.kcv  (I)ist,  ('.,].),  134.  (Pcnn.),  55. 

'■>  Reeve,  Donj,  Rel.  811.  6  See  sujira,  §  287. 

3  2  Kent,  Com;  226. 

470 


CHAP.  I.]  GUARDIANS   IN   GENERAL.  §  293 

§  292.  Guardianship  by  the  Civil  Law.  —  By  the  civil  law, 
minority  was  divided  into  two  distinct  periods  :  the  first  lasting 
until  the  age  of  puberty,  fourteen  in  males,  and  twelve  in 
females  ;  the  second  continuing  from  that  time  until  majority. 
During  the  first  period  the  guardian  was  called  tutor,  and  the 
children  pupils.  During  the  second  period  the  guardian  was 
called  curator,  and  the  children  minors;  the  curator  being 
appointed  with  special  reference  to  the  management  of  prop- 
erty.1 The  same  general  divisions  are  to  be  found  in  the  law 
of  continental  Europe  at  the  present  day,  though  modified 
somewhat  by  custom ;  also  in  Scotland ; 2  also  in  Louisiana, 
and  other  parts  of  this  country,  which  were  formerly  under 
French  and  Spanish  dominion.  But  the  term  curator  is  in 
some  codes  applied  to  the  guardian  of  the  estate  of  the  ward  as 
distinguished  from  the  guardian  of  the  person.3  So  the  civil 
law  recognized  three  kinds  of  guardianship  :  tutela  testamentaria, 
conferred  by  testament ;  Icgitima,  by  the  law  itself ;  dativa,  by 
the  authority  of  the  judge.4  These  divisions  have  their  cor- 
responding analogies  in  English  and  American  law  ;  since  we 
may  place  testamentary  guardians  in  the  first  class,  socage  and 
natural  guardians  in  the  second,  and  chancery  and  probate 
guardians  in  the  third. 

§  293.  Guardians  of  Idiots,  Lunatics,  Spendthrifts,  &c.  —  The  dif- 
ferent kinds  of  guardianship  for  minors  having  been  considered, 
we  proceed  to  speak  briefly  of  guardians  for  idiots,  lunatics,  and 
spendthrifts,  though  this  subject  conies  hardly  within  our  scope. 
Under  the  king's  sign-manual,  the  Lord  Chancellor  was  invested 
with  jurisdiction  over  the  persons  and  estates  of  insane  persons. 
For  this  reason  did  chancery  claim  authority  ;  not  by  virtue  of 
the  king's  prerogative  as  parens  patrice ;  for  idiots  and  lunatics, 
it  is  said,  were  not  under  the  protection  of  the  sovereign  until 
the  time  of  Edward  II.6  Lunatic  asylums  are  provided  by  law, 
and  regulated  from  time  to  time.     For  legally  determining  the 

1  Story,  Confl.  Laws,  §  493  ;  3  Barge,  4  Co.  Cop.  §  23  ;  Macphers.  Inf.  573  ; 
Col.  &  For.  Laws,  930, 1001-1014.  3  Burge,  Col.  &  For.  Laws,  931. 

2  Fraser,  Guardian  &  Ward,  145.  5  2  Story,  Eq.  Juris.  §§  1335,  1336; 

3  2    Kent,    Com.    224;    Duncan    v.  1  Bl.  Com.  303;  3  P.  Wms.  108. 
Crook,  49  M:>.  II 6. 

471 


§  293  THE   DOMESTIC    RELATIONS.  [PART  IV. 

question  of  insanity  in  any  case,  chancery  grants  a  commission 
in  the  nature  of  a  writ,  directed  to  masters  in  lunacy  ;  and  if 
the  subject  be  found  non  compos,  the  court  commits  his  person, 
together  with  a  suitable  allowance  for  his  maintenance,  to  some 
person  who  is  then  called  his  committee.1  Blackstone  states 
that  the  rule  in  his  day  was  to  refuse  this  guardianship  to  the 
lunatic's  next  of  kin,  "because  it  is  his  interest  that  the  party 
should  die ; "  but  this  rule  has  long  been  disregarded  in  prac- 
tice.2 The  committee  manages  his  ward's  estate,  much  the 
same  as  other  guardians,  being  held  to  a  strict  account  to  the 
court  of  chancery,  and  to  the  ward,  if  he  recovers,  or  otherwise  to 
his  personal  representatives  after  his  death.  There  are  receivers 
appointed,  with  a  salary,  in  case  others  refuse  to  act ;  but  such 
officer  is  considered  as  a  committee  and  gives  proper  security.3 
Guardians  of  insane  persons  are  appointed  in  this  country ; 
but  in  general  by  the  courts  exercising  jurisdiction  in  case  of 
minors,  which  derive  also  their  authority  from  local  statutes.4 
The  civil  law  likewise  assigned  tutors  and  curators  to  such 
persons.5 

Guardianship  for  spendthrifts  was  something  recognized  by 
the  civil  law.  Where  a  man  by  notorious  prodigality  was  in 
danger  of  wasting  his  estate,  he  was  looked  upon  as  non  compos, 
and  committed  to  the  care  of  curators  or  tutors  by  the  praetor.6 
And  by  the  laws  of  Solon,  such  persons  were  branded  with 
perpetual  infamy.7  Such  guardianship  is,  however,  unknown 
in  England,  and  Blackstone  considered  it  unsuitable  to  the 
genius  of  a  free  nation.8  It  has  nevertheless  been  introduced 
into  several  of  the  United  States.9     Being  the  creature  of  stat- 


1   1  BL  Com.  306.     See  Lunacy  Reg-  to    the    cause    of    such    unsoundness. 

illation  Act  1853,  16  &  17  Vict.  c.  70.  Robertson    r.    Lyon,   24    S.    C.    2G6; 

-  Ex  parte  Cockayne,  7  Ves.  591.  Barbo  '•.  Rider,  67  Wis.  508;  ins  Ind. 

:;  I    111.   Com.   306.     See   Ex  -parte  545.     The  general  guardian's  right  is 

Warren,  lo  Ves.  »'>'-'2.  snbject   in  the   superior    right  of  the 

•  SeeU.  S.  Dig.  "Idiots  and  Luna-  State  to  put  the  ward  into  an  asylum. 

fcic«;"  Shroyer  v.  Richmond,  16  Ohio  17  R.  I.:::. 
Si     155;  Angell   v.    Probate  pourt,  11  6  1  Bl.  Com.  306. 

I:    l    i-7.     Where  one  is  incapable  to         ,;  Ff.  27,  10,  6,  16. 
manage  his  own  estate  because  of  men-         7  Potter,  Antiq.  1>.  l.  c.  26. 
tal    unsoundness,    the    appointmenl    is         H  1  Bl.  Com.  306, 
generally  authorized  without  reference         9  See  Mass.  Gen,  Sts.  c.  10!),  §§  8,  9. 

472 


CHAP.  I.]  GUARDIANS   IN    GENERAL.  §  296 

lite  law,  the  rights  and  powers  of  such  a  guardian,  and  the 
method  of  appointment  are  strictly  construed. 

§  294.  Guardians  of  Married  Women.  —  The  modern  statutes 
relating  to  married  women  in  this  country  have  rendered  some 
special  provisions  necessary  for  their  benefit.  While  their  hus- 
bands had  the  full  enjoyment  of  their  property,  no  guardian 
was  necessary,  and  the  main  object  of  these  statutes  seems  to 
be  to  provide  a  suitable  trustee  of  the  estate,  in  case  a  minor  or 
insane  wife  is  abandoned  by  her  husband,  or  he  is  likewise 
mentally  unfitted  for  the  trust.  Such  statutes  are  to  be  strictly 
construed  as  in  derogation  of  the  common  law.1 

§  295.  Special  Guardians;  Miscellaneous  Trusts.  —  Besides 
guardians  with  general  powers,  there  are  guardians  created  by 
law  for  special  purposes.  Such  are  guardians  under  the  Eng- 
lish Marriage  Act,  appointed  for  giving  formal  consent  to  the 
marriage  of  a  minor,  and  guardians  to  release,  dower  and  home- 
stead rights  of  insane  married  women.  All  such  guardians 
derive  their  sole  authority  from  statutes,  and,  having  performed 
the  duty  prescribed,  they  have  no  further  concern  with  the 
ward.  Nor  do  they  act  except  in  default  of  a  general  guardian. 
There  are  also  public  officers  appointed  for  charitable  purposes 
on  behalf  of  the  State,  sometimes  known  as  guardians,  —  such  as 
guardians  of  the  poor;  but,  except  for  this  appellation,  they 
have  no  connection  whatever  with  our  subject.2  Special  guar- 
dians, too,  are  found  under  some  statutes,  their  rights  and  duties 
being  merely  temporary,  pending  some  controversy  over  the 
appointment  of  a  general  guardian  ;  just  as  special  administra- 
tors are  sometimes  appointed  in  a  case  of  emergency,  and  where 
the  appointment  of  the  general  administrator  is  necessarily 
delayed.3 

§  296.  Guardian  ad  Litem  and  Next  Friend.  —  Finally,  there 
is  the  guardian  ad  litem,  who  is  simply  a  guardian  for  a  special 
purpose ;  being  one  chosen  to  represent  the  ward  in  legal  pro- 


1  Smith,  Prob.  Pract.  87 ;  Scliouler,  Swartwout    v.    Oaks,    52    Barb.    622  ; 
Hus.  &  Wife,  Appendix.  Brown  v.  Snell,  57  N.  Y.  286  ;  Bond  v. 

2  See   Macphers.  Inf.    164;    Smith,  Dillard,  50  Tex.  302.     And  see  In  re 
Prob.  Pract.  87.  For  tier,  31  La.  Ann.  50. 

3  Campau   v.  Shaw,  15  Mich.  226; 

473 


§  298  THE   DOMESTIC    RELATIONS.  [PART  IV. 

ceedings  to  which  he  is  a  party  defendant,  and  where  he  has  no 
general  guardian  to  appear  on  his  behalf.  Where  the  ward  is 
plaintiff  he  appears  by  next  friend.  In  either  instance  the 
father's  natural  right  is  respected.1  The  powers  and  duties  of 
guardians  ad  litem  are  similar  in  England  and  the  United 
States.2 


CHAPTER   II. 

APPOINTMENT   OF   GUARDIANS. 


§  297.  Appointment  of  Guardians  over  Infants  in  General.  — 
Guardians  derive  their  authority  either  from  the  law  or  a  special 
appointment.  And  all  guardians  of  infants  specially  appointed 
must  be  appointed  by  the  infant's  parent ;  or  by  the  infant  him- 
self;  or  by  a  court  of  competent  jurisdiction. 

§  298.  Guardians  under  Authority  of  the  Law. — Guardians 
by  nature  and  nurture  act  under  authority  of  the  law,  which 
designates,  first,  the  father ;  and,  after  his  death,  the  mother. 
These  are  the  only  natural  guardians  possible.3  It  has  been 
said  that  the  infant's  next  of  kin  succeed  to  the  natural  guar- 
dianship when  both  parents  are  dead.4  This  cannot  be  correct 
according  to  the  sense  of  the  term  as  used  at  this  daj\  The 
mother  is  considered  the  natural  guardian  of  a  bastard,  in  this 
country,  as  against  its  putative  father  ; 5  though  the  common 
law  regarded  such  children  as  without  a  natural  guardian.6  On 
principle,  it  would  seem  that  the  natural  guardianship  of  a  child 

1  See  Woolf  v.  Pemberton,  6  Ch.  D.  .Tarrett  v.  State,  5   Gill  &  Johns.  27 ; 

19.  Eldridge    v.    Lippincott,    Coxe,    397; 

-  Macphers.  Inf.  358;  2  Kent,  Com.  Fields  v.  Law,  2  Root,  320. 

229.      See   Infants,  j>ost,   Part  V.  c.  6.  «  See  Peeve,  Pom.  Rel.  315. 

A  guardian  nil  litem's  special  functions  5  Wright  V.  Wright,  2  Mass.  109; 

in    a    suit,    arc    not   superseded  by  the  Hudson/'.  Mills,  8  N.  H.  417 ;  Peoples. 

appointment   of  a  general  (insane  per-  Kling,  6  Barb.  366;  Palton  v.  State,  6 

son's)  guardian.     79  Wis.  465.  Blackf.  357  ,  §  282. 

Lit*.  P8  b;  1    151    Com.  461  ;  2  °  Macphers.  Inf.  67;  supra,  §§  278, 

Kent,  Com.  220;    Macphers.  Inf.    52;  279. 

474 


CHAP.  II.]  APPOINTMENT   OF   GUARDIANS.  §  299 

is  shifted  to  the  mother  when  custody  is  awarded  her  because 
of  her  husband's  personal  unfitness.  And  the  modern  tendency 
is  to  regard  both  husband  and  wife  as  guardians,  by  nature,  of 
their  own  children ; J  at  the  same  time  that  this  gives  no  right 
to  control  a  child's  property  without  a  legal  appointment  such  as 
we  shall  presently  notice. 

Socage  guardians  also  derived  their  authority  from  the  law, 
and  not  from  a  special  appointment.2 

§  299.  Testamentary  Guardianship,  how  Constituted.  —  Testa- 
mentary guardianship  is  the  only  recognized  instance  of  authority 
derived  from  parental  appointment.  Guardians  thus  appointed 
require  at  the  old  law  no  further  qualification  ;  not  even  the 
probate  of  the  will  which  appoints  them.3  But  testamentary 
guardianship  exists  in  this  country  chiefly  by  force  of  local 
statutes,  which  also  regulate  the  form  and  authentication  of 
wills.  And  we  find  many  modifications  of  the  old  English 
rule ;  none  more  important  than  those  of  several  States  which 
render  a  probate  of  the  will  necessary  before  a  testamentary 
guardian  can  act ;  while  it  is  not  unfrequently  found  that  the 
appointment  remains  subject  to  the  approval  of  the  court,  and 
requires  the  person  appointed  to  qualify  with  or  without  sureties.4 

The  parol  appointment  of  a  testamentary  guardian  is  insuffi- 
cient.5 But  the  instrument  which  designates  him  need  not 
invariably  be  executed  with  the  same  formality  as  a  will ;  for 
the  father,  as  the  old  statute  intimates,  may  appoint  by  testa- 
mentary deed.  It  has  been  held  that  the  appointment  of 
guardians  by  a  will  not  duly  attested  was  made  good  by  a 
codicil  duly  attested,  written  on  the  same  paper,  making  cer- 
tain alterations   in  the  will,  and  confirming  it  in  other  respects.6 

1  See  supra,  §§  247,  248,  285  ;  People  mon  law  over  a  question  of  custody  has 
v.  Boice,  39  Barb.  307.  directed  an  issue  in  order  to  establish 

2  2  Kent,  Com.  223  ;  see  supra,  the  same.  In  re  Andrews,  L.  R.  8  Q.  B. 
§§  286,  290.  153. 

3  Brigham  v.  Wheeler,  8  Met.  127;  *  Supra,  §§  287,  290;  Re  Taylor,  3 
Hoyt's  Case,  2  Edw.  Ch.  113;  In  re  Redf.  N.  Y.  259;  Wadsworth  v.  Con- 
Hart,  2  Con.  &  L.  375  ;  Lady  Chester's  nell,  104  111.  369. 

Case,   Vent.   207.     See    7    Ves.    365 ;  5  Macphers.  Inf.  84.     See  Johnstone 

Gilliat  v.  Gilliat,  3  Phillim.  222.     The  v.  Beattie,  10  CI.  &  Fin.  42. 
validity   of  the   testamentary  appoint-         6  De  Bathe  v.  Lord  Fiugal,  16  Ves. 

ment  beiug  in  dispute,  a  court  of  com-  167.     But  see  Marshall,  C.  J.,  in  Gaines 

475 


§  299  THE   DOMESTIC    RELATIONS.  [PART   IV. 

It  is  sometimes  difficult  to  determine  what  language  will  con- 
stitute testamentary  guardianship.  The  statute  uses  the  words 
"  custody  and  tuition "  in  reference  to  the  children ;  and  such 
assignment  of  the  children  as  confers,  expressly  or  by  implica- 
tion, a  power  thus  extensive,  ought  to  suffice.  Thus,  where  a 
testator  gives  the  "  care  and  custody "  of  his  children,  further 
directing  that  the  person  so  intrusted  shall  be  guided  by  the 
advice  of  his  executors,  as  to  the  children's  education,  this  is 
held  to  be  a  good  appointment.1  So  it  is  held  that  testamentary 
guardianship  was  constituted,  where  a  testator  directed  the 
trustees  of  his  will  to  procure  a  suitable  house  for  the  residence 
of  his  children,  who  were  infants,  and  to  engage  a  proper  person 
for  the  purpose  of  taking  the  management  aud  care  of  the  house 
and  of  his  children  during  their  minority ;  and  requested  his 
late  wife's  sister,  if  she  should  be  alive  at  his  decease,  to  take 
such  management  and  care  on  herself.2  And  in  general  testa- 
mentary guardians  need  not  be  expressly  designated  as  such ; 
albeit,  in  order  to  constitute  them  by  implication,  the  powers 
essential  to  the  office  must  be  conferred.3 

The  devise  of  certain  property  "  in  trust "  for  infants  is  not  a 
devise  of  guardianship.  Thus  it  was  said  by  Lord  Vaughan 
that,  where  a  testator  devised  land  to  a  trustee,  to  be  held  in 
trust  for  his  heir,  and  for  his  maintenance  and  education  until 
he  should  be  of  age,  this  was  no  devise  of  the  custody  within 
the  statute,  for  he  might  have  done  this  before  the  statute.4 
The  same  may  be  said  generally  of  legacies  and  bequests  in 
trust.5  But  where  a  testator  divided  the  residue  into  equal 
parts,  a  certain  number  of  which  he  gave  to  a  minor  child  and 
appointed    the    executors  "guardians  and   trustees,"  there  was 

V.   Spaiin,   2   Brock.   81;    Wardwell   v.  Memles  v.  Mendes,  1   Yes.  89;  s.  c.  3 

Wardwell,   '.>   Allen,  518.     A  testamen-  Atk.  619. 

tary  guardian  can   only  be  appointed  8  Gaines  i-.   Spann,    2    Brock.    81; 

by  ;ui  instrument  admitted  to  probate,  Peyton   v.  Smith,  2  Dev.  &  Batt.  Eq. 

which    names    such    person,    and    indi-  325;    Johnstone  v.  Beattie,    10    CI.    & 

that   he  is  to  have  the  care  and  Fin.  42  ;  Balch  v.  Smith,  12  N.  H.  437  J 

nurture  of    the    infant.      Desribea  v.  90  Ga.  236. 

Wilmer,  69  Ala.  25;  §  290.  4  Bedell  v.  Constaldo,   Vaugh.    177. 

1  See  Corrigan  v.  Kiernan,  1  Bradf.  6  Kevan  v  Waller,  n   Leigh,  414; 

208  ;  69  Ala.  25.  Dunham  v.  Iiutchcr,  31  Ala.  483. 

-   Miller  V.  Harris,  14  Sim.  540.     See 

476 


CHAP.  II.]  APPOINTMENT   OF   GUARDIANS. 


§  300 


really  no  trust,  in  effect,  and  the  executors  were  not  constituted 
trustees,  but  guardians  simply.1 

§  300.  The  Same  Subject.  —  Testamentary  guardians,  to  use 
the  statute  expression,  may  be  appointed  "  either  in  possession 
or  remainder ; "  that  is,  successors  in  the  guardianship  may  be 
designated.  So  they  may  be  authorized  to  act  during  the  full 
term  of  the  infant's  minority  or  for  a  less  period.  So  the  will 
may  give  authority  to  the  surviving  guardian  to  nominate  a 
person  in  the  place  of  his  co-guardian  who  has  died ;  although 
it  appears  to  be  a  general  rule  that  one  testamentary  guardian 
cannot  appoint  another,  since  his  office  is  personal,  and  not 
assignable.2  In  other  words,  the  testator  is  allowed  a  liberal 
discretion  in  bis  selection  and  in  limiting  authority.  The  paper 
which  creates  a  person  testamentary  guardian  becomes  thus  the 
test  of  his  official  powers  and  responsibility.  Letters  of  guar- 
dianship from  the  chancery  or  probate  court  give  his  appoint- 
ment no  additional  force,  unless  required  by  statute.  In  fact, 
such  letters,  however  regarded  in  his  dealings  with  strangers, 
are  as  a  rule,  and  independently  of  positive  statute  expression, 
issued  without  jurisdiction.3  In  general,  a  firm  cannot  be 
made  testamentary  guardian  of  an  infant ;  nor  could  formerly 
a   corporation ; 4    though   financial   corporations  are    sometimes 


1  Hawley  Re,  104  N.  Y.  250. 

2  Goods  of  Parnell,  L.  II.  2  P.  &  D. 
379;  Macphers.  Inf.  82;  Vaugh.  177. 

3  Robinson  v.  Zollinger,  9  Watts, 
169;  Morris  v.  Harris,  15  Cal.  226; 
Holmes  v.  Field,  12  111.  424;  Copp  v. 
Copp,  20  N.  H.  284.  See  Macphers. 
Inf.  84,  86;  Stone  v.  Dorrett,  18  Tex. 
700.  But  statutes  may  provide  that 
letters  of  guardianship  shall  issue  to  a 
testamentary  guardian  who  must  first 
qualify.  Hence  a  non-resident  alien  is 
held  incapable  of  serving.  Re  Taylor, 
3  Redf.  (N.  Y.)  259.  And  see  post, 
§  303.  If  the  testator's  will  prescribes 
that  the  wife  shall  be  testamentary 
guardian  of  the  children,  "  as  long  as 
she  shall  remain  his  widow,"  her  au- 
thority ceases  on  her  remarriage,  and 
a  new  appointment  becomes  necessary. 
Currigau  v.  Kiernan,  1  Bradf.  Sur.  208; 
Holmes  v.  Field,  12  111.  424. 


In  a  New  York  case,  it  was  held, 
on  appeal  from  the  surrogate,  that 
no  probate  guardian  could  be  ap- 
pointed after  the  father's  decease, 
where  the  father,  being  a  man  of  indi- 
gent circumstances,  had  surrendered 
his  children  to  a  charitable  institution 
by  an  instrument  in  writing,  executed 
during  his  lifetime,  and  not  long  before 
his  death,  in  presence  of  two  witnesses, 
which  purported  to  "  commit  and  sur- 
render "  the  children  to  the  said  insti- 
tution pursuant  to  its  charter.  There 
were  no  testamentary  expressions  used, 
nor  did  the  instrument  appear  to  have 
been  executed  in  contemplation  of 
death.  The  decision  of  the  court  ap- 
pears to  rest  on  statutory  interpreta- 
tion.    People  v.  Kearney,  31  Barb.  430. 

4  See  Macphers.  Inf.  109 ;  De  Mazai 
v.  Pybus,  4  Ves.  644. 

477 


§  301  THE   DOMESTIC    RELATIONS.  [PART   IV. 

chartered  at  this  day  with  express  power  to  assume  fiduciary 
trusts.1 

The  testator's  power  of  appointment  extends  to  all  his  lawful 
children  surviving  at  his  decease,  being  still  minors  and  unmar- 
ried. Posthumous  children  are,  likewise,  included.  And  the 
testator's  appointment  of  his  wife  as  testamentary  guardian  is 
not  revoked  by  the  birth  of  such  issue,  subsequent  to  the  exe- 
cution of  the  will  or  testamentary  deed  appointing  her ;  the 
analogy  of  distribution  of  one's  property  failing  to  affect  this 
case.2  A  testator  cannot  appoint  a  testamentary  guardian 
except  to  his  own  children ;  but  an  attempt  to  appoint  one  for 
others  may  create  a  trust.3 

§  301.  Guardianship  by  Appointment  of  Infant ;  Right  to 
Nominate.  —  Guardianship  by  sule  appointment  of  the  infant 
cannot  now  be  said  to  exist.  But  at  the  common  law  there 
was  one  instance  where  it  arose ;  namely,  when  the  heir  above 
the  age  of  fourteen  chose  to  supersede  his  guardian  in  socage) 
by  one  of  his  own  choice,  under  a  deed  of  appointment.4  Infants 
have  still  the  privilege  of  nominating,  though  not  appointing,  a 
guardian  in  court,  after  arriving  at  this  age  ;  and  if  judicially 
sanctioned,  their  choice  is  good.  In  the  appointment  of  chancery 
guardians,  the  custom  is  for  the  court  to  approve  such  nomina- 
tion without  the  usual  reference  to  a  master.5  But  this  is  not 
an  invariable  rule.6  Testamentary  guardians  cannot  be  super- 
seded in  this  way,  nor  chancery  guardians.7  Statutes  giving  the 
right  of  selecting  their  own  probate  guardians  to  infants  above 
fourteen  have  been  enacted  throughout  the  United  States  ;  but 
the  extent  of  this  privilege  is  not  uniformly  prescribed.8     Yet 

1  Rice's  Case,  42  Mich.  528;  Re  7  Palmer,  22 ;  Andrew,  313 ;  Matter 
Cordova,  4  Redf   66;   Minnesota  Co.  v.     of  Dyer,  5   Paige,  Ch.  534;  Matter  of 

id  Minn.  7;  §§  283,  305.  Nicoli,  1  Johns.  Ch.  25  ;  Matterof  Rey- 

2  Hollingsworth'sAppeal,5lPenn.St.  nolds,  18  X.  Y.  Supr.  41.  Nor  the 
518;  2  Bro.  ( '.  ( '  538;  Macphers.  Inf .  87.     mother  as  natural  guardian.     Beard  v. 

imp   v,   Pitt  man,   90   X.  C.   615.  Dean,  64  Ga.  258.     As  to  a  non-resident 

182,  as  to  illegitimate  children.  father   whose   infant   son   of    fourteen 

'  Supra,  §S  286,  289  ;  Co.  Litt.  89  a,  prefers  another  person,  see  4  Dem.  36. 

Edwards,  3  Atk.   519;  h  See   Ham  v.  Ham,   15  Gratt    74; 

Macph                     109.  Dibble  v.  Dibble,  8   Ind  307;  Pitts  v. 

'    /  i    parti    Watkins,   2   Yes     t7o;  Cherr  ,  14   Ga.  594;   Arthur's  Appeal, 

Curtis  v.  Rippon,  I  Madd.  162;  Coham  I  Grant,  55;  Sessions  v.  Kell,  30  Miss. 

P   I      tain,  13  Sim  639  458;    Montgomery  v.  Smith,  3  Dana, 

ITS 


CHAP.  II.]  APPOINTMENT   OF   GUARDIANS.  §  303 

the  ward  cannot  set  aside  a  testamentary  or  chancery  guar- 
dian in  this  country ;  nor,  on  principle,  should  he  be  allowed  to 
supersede  a  probate  guardian  properly  appointed,  unless  author- 
ized to  do  so  by  a  positive  statute.1  Having  once  exercised  his 
right  of  choice,  he  is  bound  by  the  appointment,  and  cannot 
nominate  again,  as  his  fancy  pleases.2  In  any  event  the  court, 
must  sanction  the  infant's  selection,  and  issue  letters  before  the 
guardian  can  act ;  so  that  this  is  guardianship  by  appointment 
rather  of  the  court  than  of  the  infant,  but  not  of  course  by  judi- 
cial appointment  at  arbitrary  discretion. 

§  302.  Chancery  and  Probate  Guardians  are  Judicially  Ap- 
pointed. —  Chancery  and  probate  guardians,  subject  to  the  above 
qualification,  are  created  in  strictness  by  the  special  appoint- 
ment of  a  court  exercising  competent  jurisdiction.  And  in  dis- 
cussing this  subject  of  judicial  appointment  we  shall  consider, 
first,  the  tribunal  which  appoints  ;  second,  the  persons  properly 
appointed  ;  third,  the  method  of  appointment ;  and  fourth,  the 
effect  of  the  appointment. 

§  303.  The  Same  Subject ;  Jurisdiction  ;  how  Obtained.  —  As 
to  the  first  point,  it  may  be  premised  that  in  England  all  guar- 
dians are  appointed  by  the  court  of  chancery  in  the  exercise 
of  inferior  or  appellate  powers.  Chancery  guardians  have  been 
appointed  in  this  country,  but  not  frequently ;  and  county 
courts  of  probate  jurisdiction  at  the  present  day  generally  act 
in  the  first  instance,  issuing  letters  of  guardianship,  as  well  as 
of  administration,  under  their  official  seal.  Thus,  in  New 
England  and  most  of  the  Western  States,  probate  guardians  are 
appointed  by  the  judge  of  probate ;  in  New  York,  by  the 
surrogate;  in  New  Jersey,  by  the  orphans'  court  or  the  ordi- 
nary ;  in  Pennsylvania  and  Maryland,  by  the  orphans'  court ; 

599  ;   Palmer  v.  Oakley,  2  Doug.  433 ;  1  Dyer's  Case,  5  Paige,  Ch.  534. 

62   N.    H.   440.      The    minor's    choice  -  Lee's   Appeal,  27    Penu.    St.  229. 

under  statute  cannot  be  disapproved  at  See  also  E.  B.  v.  E.  C.  B.,  28  Barb.  299. 

the  arbitrary  discretion  of   the  judge;  But  see  Adams's  Appeal,  36  Conn.  304, 

but  if   one   choice   be  injudicious,    the  showing    that   local   statutes    vary   on 

minor  may  choose  another,  and  upon  the  this  point.      The  court  has  sometimes 

choice  of  an  unobjectionable  person  the  regarded  the  wishes  of  a  child   under 

minor  has  a  right  to  have  him  appointed,  fourteen  where  the  scales  are  balanced ; 

Adams's  Appeal,  38  Conn.  304.     And  but  only  at   its  ample  discretion.      91 

see  next  c. ;  1  Dem.  (N.  Y.)  154.  Ga.  90. 

479 


§  303  THE   DOMESTIC    RELATIONS.  [PART   IV. 

in  Ohio,  by  the  court  of  common  pleas  with  chancery  powers  ; 
in  California,  by  the  district  courts  possessing  a  similar  juris- 
diction. In  Virginia,  North  and  South  Carolina,  the  chancery 
and  county  courts  have  exercised  a  sort  of  concurrent  juris- 
diction ;  in  others  of  the  Southern  States  there  are  orphans' 
courts ;  in  Louisiana  the  civil  law  has  prevailed.1 

Two  important  elements  enter  into  this  jurisdiction  over  the 
ward,  —  possession  of  property  and  actual  residence  within  the 
judicial  limits.  Property  in  the  infant  has  usually  been  deemed 
essential  in  chancery  practice.2  But  in  a  case  which  came 
before  Lord  Chancellor  Cottenham,  in  1847,  it  was  held  that 
the  court  should  interfere  on  behalf  of  infants  without  property, 
so  as  to  award  custody  of  the  person.  "  I  have  no  doubt  about 
the  jurisdiction,"  was  his  emphatic  language.3  What  may  be 
called  guardians  of  the  person  and  estate  in  chancery  are  still 
appointed,  however,  on  the  allegation  of  property.  In  the 
United  States  letters  issue  to  probate  guardians,  whenever 
there  is  occasion  for  their  appointment,  the  statute  rarely  pre- 
scribing narrower  limits  to  the  judge's  authority  ;  and  as  our 
practice  is  simple  and  attended  with  little  expense,  the  same 
necessity  for  inquiry  into  the  means  of  the  infant  does  not 
manifestly  arise  as  in  the  case  of  chancery  guardianship.  But 
statute  and  practice  generally  have  reference  to  cases  of 
property.4 

Where  the  ward  is  a  non-resident,  guardianship  is  frequently 
recognized  for  the  collection  and  preservation  of  his  estate  in 


1  See  2  Kent,  Com.  226,  227,  and  cent  case  where  an  infant  grandchild 
notes;  Glascott  v.  Warner,  20  Wis.  was  born  abroad  of  a  natural-born 
654;  Herring  v.  Goodson,  43  Miss.  392 ;  British  subject,  and  the  surviving  par- 
Duke  v.  State,  57  Miss.  229.  For  rules  ent  was  a  French  woman  to  whom 
which  prevailed  in  California  while  un-  objections  were  entertained  and  who 
der  Mexican  rule,  and  the  powers  of  had  begun  proceedings  for  guardianship 
alcadee  over  guardianship,  sec;  Braly  v.  in  France,  the  English  chancery  court 
Reese,  51  Cal.447.  As  between  a  lim-  appointed  a  guardian  of  the  child,  al 
ited  guardian  appointed  by  chancery  though  the  infant  was  resident  abroad 
and  a  general  guardian  appointed  under  and  had  no  property  in  Great  Britain. 
statute  bj  the  1  ■  ><:i  1  county  court,  see  Willoughby  Re,  30  Ch.  D.  324.  And 
La]  e  v.  McDavitt.  13  Lea,  26.  sec  supra,  §  288;   40  Ch.  I).  200;   Mc- 

2  See    Macphers.    Inf.    108;    supra,  Grath  Re,  [1 898]  1  Ch.  143. 

|  288.  4  People  v.  Kearney,  31  Barb.  430. 

8  In  re  Spence,  2  Ph.  247.    In  are- 

480 


CHAP.  II.]  APPOINTMENT  OF  GUARDIANS.  §  303 

the  jurisdiction ;  and  in  such  cases  the  court  where  the  prop- 
erty is  situated,  upon  due  notice,  appoints  some  friend  of  the 
minor  on  his  behalf,  requiring  proper  security ;  the  existence 
and  situs  of  the  property  determining  the  right  of  jurisdiction.1 
Such  cases  serving  some  special  emergency,  a  general  guar- 
dian need  not  first  be  appointed  invariably  where  the  ward  is 
domiciled.2 

Far  more  important  is  the  requirement  of  an  actual  resi- 
dence within  the  jurisdiction;  especially  for  a  general  guardian- 
ship and  in  States  where  the  authority  of  courts  with  probate 
jurisdiction  is  strictly  limited  to  their  respective  counties. 
Letters  of  guardianship  in  the  case  of  a  resident  person  obtained 
in  the  wrong  county  are  invalid;  it  has  been  even  held  that 
they  are  null  and  void,  and  may  be  collaterally  impeached  in 
any  court.3  Where  the  courts  of  two  or  more  counties  have 
concurrent  jurisdiction,  as  if  a  non-resident  has  property  lying 
in  different  places,  the  general  principle  is  that  the  court  where 
proceedings  are  first  commenced  retains  jurisdiction.4  And 
letters  once  properly  issued  in  the  proper  county  of  residence 
are  not  revoked  by  the  ward's  removal  to  another  county  within 
the  same  general  jurisdiction.  Pending  an  application  for  guar- 
dianship in  the  county  and  State  where  infants  properly  re- 
sided, the  sister  of  the  infants  removed  them  to  another  State, 
and  letters  were  there  granted ;  yet  the  former  jurisdiction  was 
not  thereby  divested.5  Where  a  new  appointment  becomes 
necessary,  next  to  the  inquiry  whether  the  party  is  a  minor  or 

■J        *  Clarke   v.   Cordis,   4   Allen,   466  ;  ter  effect  may  be  treated  as  surplusage. 

Rice's  Case,  42   Mich.  528.     See   Hope  45    Minn.   380.     Where  the  land  of  a 

v.  Hope,  27  E.  L.  &  Eq.  249  ;  Rp  Hors-  minor,  not  residing  in  the  State,  is  to 

ford,  2  Redf.   168;  Neal    v.  Bartleson,  be  sold,  see  40  Minn.  254. 
65  Tex.  478.     This  jurisdiction  is  often  2  West  Land  Co.  v.  Kurtz,  45  Minn, 

conferred    by   statute    as    to   personal  380. 

property.     lb.    So,  too,  as  to  real  prop-  3  Ware  v.  Coleman,  6  J.  J.  Marsh, 

erty  at  the  local  situs,  or  to  either  real  198,    Sears    v    Terry,  26    Conn.   273; 

or  personal  property.  Maxwell  v.  Camp  Dorman   v.    Ogbourne,    16    Ala.   759; 

bell,  45  Ind.  360 ;  Seaverns  ?>.  Gerke,  3  Munson  v.  Munson,  9  Tex.  109 ;  Lacy 

Sawyer,  353.     .Such  statutory  authority  v.   Williams,  27   Mo.  280;    Herring  v. 

as  to  non-residents  is  valid.     Davis  v.  Goodson,  43  Miss.  392  ;  Duke  v.  State, 

Hudson,  29  Minn.  27.    And  while  it  only  57  Miss.  229.     See  §  308. 
applies  to  a  non-resident's  local  prop-  4  Danueker  Re,  67  Cal.  643. 

erty,  and  cannot  extend  to  his  person,  5  Shorter  v.  Williams,  74  Ga.  539. 

informal  recitals  in  a  decree  to  the  lat- 

31  ■      481 


§  303  THE   DOMESTIC   RELATIONS.  [PATtT    IV. 

otherwise  legally  subject  to  guardianship  at  all,  is  the  determi- 
nation of  his  actual  residence.  But,  as  just  observed,  property 
may  give  jurisdiction  in  some  cases  where  the  ward  resides 
abroad.  Nor  does  non-jurisdiction  make  everything  void  to  the 
extent  of  relieving  one  from  liability  who  has  acted  as  guardian 
and  received  property  in  that  capacity,  since  one  may  be  a  quasi 
guardian,  and  be  estopped  by  his  own  acts.1 

The  infant's  place  of  residence  at  the  time  when  a  guardian 
is  to  be  appointed  determines  the  jurisdiction  of  the  court. 
Hence  the  county  court  which  appointed  the  first  guardian  of 
a  ward  may  not  always  appoint  his  successor.2  And  statute 
jurisdiction  is  taken  where  minor  orphans  are  in  fact  resident 
in  a  State  at  the  time,  even  if  the  legal  domicile  be  elsewhere ; 
the  appointment  giving  at  all  events  an  authority  to  be  recog- 
nized within  such  State.3  The  last  domicile  of  a  father  is  on 
his  death  the  domicile  of  his  minor  children,  where  application 
for  guardianship  should  primarily  be  made.4  After  the  death 
of  both  parents,  infants  who  take  up  their  residence  at  the 
home  of  a  paternal  grandparent  and  next  of  kin  in  another 
State,  will  acquire  such  grandparent's  domicile.5 

The  court  of  chancery  exercises  a  large  discretion.  Its 
authority  over  the  persons  and  estates  of  infants,  idiots,  and 
lunatics  cannot  be  questioned  elsewhere.  No  tribunal  short 
of  the  legislature  can  interpose  a  check  upon  its  powers.  But  it 
is  different  with  probate  courts.  Their  jurisdiction  is  founded 
upon  local  statutes,  maintained  in  derogation  of  the  common 
law,  made  subject  to  the  supervision  of  supreme  tribunals,  and 
confined  to  the  exercise  of  special  powers  sparingly  conferred. 
From  the  fact  that  the  English  equity  courts  are  unfettered  in 
their  authority,  chancery  courts  in  this  country  incline  to  the 
same  direction  ;  hence  they  construe  strictly  the  powers  of  the 
probate  courts,  while  maintaining  their  own;  a  matter  of  little 
difficulty,  since  the  supreme  authority  is  in  their  hands,  whether 

1   McClure    ?'•    Commonwealth,    80  as  to  domicile,  supra,  §  230;  post,  c.  5. 

Penn.  St.  167;  post,  Part  [V.  Questions  of  conflicting  jurisdiction  will 

-   Harding  v.  Weld,  l  uh  Mass.  587;  be  considered,  c.  4,  post. 

Brown  <    Lynch,  2  Bradf.  214.  *  Wells  v.  Andrews.  60  Miss.  373. 

Ro            Southwestern    K..  53   <Ja.  6  Lamar  v.  Micou,  1 14  U.  S.  218. 
-514;   //<    Hubbard,  82   N.  V.  90.    See 
482     • 


CHAP.  II.]  APPOINTMENT   OF   GUARDIANS.  §  303 

in  matters  of  probate,  equity,  or  common  law.  With  especial 
strictness  are  the  powers  of  probate  tribunals  scrutinized  in 
matters  which  do  not  grow  out  of  the  settlement  of  estates  of 
deceased  persons.1 

It  may  devolve  on  chancery  to  appoint  guardians  where  testa- 
mentary guardians  decline  or  are  disqualified  to  act.  So  where 
there  are  two  or  more  testamentary  guardians  and  they  fail  to 
agree.2  And  it  is  the  English  rule  that  testamentary  guardian- 
ship does  not  go  over  upon  the  guardian's  death,  no  successor 
having  been  indicated  in  the  will ;  but  chancery  must  supply 
the  vacancy.3  The  same  may  be  said  of  the  courts  in  this  coun- 
try with  probate  jurisdiction.4 

It  would  appear  to  be  the  general  rule  in  this  country,  that 
a  probate  or  statute  guardian  cannot  be  appointed  for  a  minor 
where  the  minor  is  not  within  the  jurisdiction  or  domiciled 
there,  and  has  no  property  therein ;  and  moreover,  that  bring- 
ing an  infant  into  the  State  by  stratagem  for  the  purpose  of 
giving  a  colorable  jurisdiction  will  not  avail.5  And  in  general, 
whether  a  guardian  shall  be  appointed  or  not  for  an  infant  is  a 
matter  resting  in  the  sound  discretion  of  the  court ;  for  an  ap- 
pointment is  made  on  the  supposition  that  occasion  at  least 
exists  for  making  it.6 

1  See,  for  instance,  as  to  insane  per-  and  insanity.      King  v.  Bell,  36  Ohio 

sons  and  spendthrifts,  Holden  r.  Scan-  St.   460.      The   wife    rather   than   the 

lin,   30   Vt.    177;    Sears   v.   Terry,   26  father  is  entitled  to  the  control  of  an 

Conn.  273  ;  Strong  v.  Birchard,  5  Conn,  insane  husband  of  full  age.     Robinson 

357  ;  Cooper  v.  Summers,  1  Sneed,  453  ;  v.  Frost,  54  Vt.  105. 
Hovey  v.  Harmon,  49  Me.  269.     And  2  Macphers.  Inf.  113  ;  lb.  104. 

see,  as  to  minors,  Re  Horsford,  2  Redf.  3  Bac.  Abr.  Guardian  &  Ward,  A. 

168.      There   are   many  local   statutes  4  See  People  v.  Kearney,  31    Barb, 

relating  to   the   appointment  of  guar-  430;  Judge  of  Probate  v.  Hinds,  4  X.  H. 

dians  over  persons  of    unsound    mind,  464. 

whose  consideration  is  foreign  to  our  5  Re   Hubbard,  82   N.  Y.  90.     The 

present  purpose.     See  89  Iud.  300 ;  90  status  of  an  Indian  tribe  does  not  iu- 

Ind.  417;    53  Wis.  612,  625 ;    61  N.  H.  validate   jurisdiction    in    appointing   a 

261 ;    58  Mich.  549.     The  jurisdiction  guardian.      Farringtou    v.    Wilson,   29 

of  a  probate   court    to    appoint    such  Wis.  383. 

guardians  is  wholly  statutory,  and  the  6  Vandewater  Re,   115    N.  Y.  669; 

formalities    of    the   statute   should    be  Newton    r.   Janvrin,    62    N.    H.    440. 

carefully    observed.      North    v.   Joslin  Where  a  testamentary  trustee,  though 

59   Mich.  624.     Jurisdiction   may   also  never  qualifying  as  guardian,  has  hon- 

arise  in  a  given  case  to  appoint  a  guar-  estly   and   faithfully   performed    those 

dian  both  on   the  grounds  of   infancy  functions     while     the     children     most 

483 


§  304  THE  DOMESTIC   RELATIONS.  [PART   IV. 

§  304.  Selection  of  Chancery  or  Probate  Guardian.  —  Second. 
In  selecting  the  proper  person  as  guardian,  the  judge  is  allowed 
to  exercise  a  liberal  discretion,  and  his  decision  will  not  be  dis- 
turbed on  appeal  except  for  good  and  sufficient  cause.  Such  is 
the  rule  both  in  England  and  America.1  But  this  discretion  is 
not  an  arbitrary  one  ;  it  must  be  exercised  in  conformity  with 
certain  fixed  principles.  And  if  the  judge  appoint  without  giv- 
ing reasonable  notice,  so  that  parties  interested  have  not  a  fair 
opportunity  to  be  heard  upon  the  petition,  his  appointment  may, 
according  to  the  better  practice,  be  set  aside  on  appeal  at  the 
instance  of  an  aggrieved  party.2 

"Where  the  father  of  an  infant  is  living,  and  in  charge  of  the 
child,  courts  have  ever  been  unwilling  to  assume  jurisdiction. 
Chancery,  according  to  the  old  rule,  as  we  understand  Blackstone 
to  mean,3  could  not  appoint  a  guardian  except  for  fatherless 
children.  But  the  correctness  of  this  principle  was  afterwards 
doubted  ;  and  when  the  rule  became  settled,  in  Lord  Thurlow's 
time,  that  the  father  could  not  give  a  valid  receipt  for  his  child's 
legacy,  the  necessity  of  appointing  a  guardian  to  collect  and  hold 
personal  property  was  apparent.4  And  since  the  substitution 
of  chancery  and  probate  wards  in  practice  for  socage  wards, 
guardianship  of  the  minor  in  the  father's  lifetime  has  fre- 
quently been  sought  in  the  courts.5 

But  the  English  chancery  reluctantly  interferes  with  the 
father's  rights  in  such  cases.  Lord  Chancellor  Hart  in  1828 
refused  to  bestow  the  chancery  guardianship  of  a  minor  upon 
a  third  person,  on  the  ground  that  the  father  is  guardian  of 
his  own  children  by  paramount  title  and  common  right.  And 
while  he  admitted  that  the  court  should  in  all  cases  assume  the 

needed  them,  a  court  disinclines  to  ap-  pointed  without  notice  to  the  paternal 

poinl    some   one    else    their    guardian  grandparent,  if  there  be  one.     /t'e  Fee- 

from  merely  formal  considerations.     89  ley,  4  Redf.  306.     See  37  X.  J.  Kq.  245, 

63.    '  251  ;  58  N.  II.  15. 

1  Kaye'     Case,   L.   R.   1    Oh.  387;         8  3  Bl.  Com.  427. 
Battle  v.   Vick,  4  Dev.  2<)4  ;  White  v.         *  Cooper  v.  Thornton,  3  Bro.  C.  C. 

Pomeroy,  7  Barb.  640;  Nelson  r.  (Jniii,  '.»(■>;    Dudley   ».-.   TnllVrrv,    l    ]'.  Wins. 

22  .\iL-.':>. 7  2sr, ;  2  Kent,  Com.  220,  and  cases  cited; 

-  (Jnderhill  v   Dennis,  9  Paige,  202;  Lang  v.  Pettus,  1 1  Ala.  37. 
Bo                 Dixon,  32   Ark.  92.     A    ma-  5  See  Ex  parte  Bond,   8   L.   J.  Ch. 

tenia!  grandparent  ought  not  to  he  ap-  252. 

484 


CHAP.  II.]  APPOINTMENT   OF   GUARDIANS.  §304 

superintendence  of  the  child's  fortunes,  he  added,  that  during 
the  father's  life  no  other  could  be  placed  over  the  child,  except 
under  very  peculiar  circumstances,  and  even  then  rather  as  a 
curator  than  a  guardian.1  And  the  later  decisions  are  to  the 
same  effect;  as,  for  instance,  Fynn's  Case, where  Vice-Chancellor 
Bruce  refused  to  make  the  mother  a  chancery  guardian  of  her 
children  against  the  father's  wishes,  though  satisfied  that  the 
latter  was  unable  to  maintain  them,  and  was  such  a  person  as 
would  not  have  been  selected  for  the  guardianship  of  another 
person's  children.2 

The  great  difficulty  which  arises  in  the  English  chancery  prac- 
tice, where  guardianship  is  sought  by  a  stranger,  namely,  that 
a  father's  custody  of  his  own  children  is  thereby  disturbed,  has 
been  frequently  obviated  in  this  country  by  statute.  And  in 
many  States,  while  the  father  is  living,  probate  guardians  are 
appointed,  whose  powers,  being  limited  to  the  infant's  estate,  do 
not  come  in  conflict  with  the  parental  right  to  the  ward's  per- 
son.3 Yet  in  other  States  the  probate  courts  can  only  grant 
guardianship  to  orphans,  that  is,  to  fatherless  children  ; 4  and 
where  this  is  the  case,  chancery  might  assume  jurisdiction  in 
an  extreme  case,  though  the  father  were  living.  A  father  who 
is  alive  is  not  bound  usually  by  proceedings  for  the  guardian- 
ship of  his  child,  to  which  he  was  not  a  party.5  A  minor  child, 
inheriting  from  his  mother,  or  otherwise  acquiring  property  in- 
dependently of  the  father,  may  at  this  day  require  a  guardian 
to  collect  and  hold  such  property  for  him  ;  and  while  ordinarily 
a  father  will  be  appointed  guardian  of  his  motherless  child,  such 
appointment  will  be  refused  in  American  practice  where  it  is 
apparent  that  he  is  an  unsuitable  person  and  that  the  child's 
best  interests  require  some  one  else  appointed,  whether  on  the 
father's  nomination  or  adversely  to  him.6 

1  Barry  v.  Barry,  2  Moll.  210.  5  Bowles  v.  Dixon,  32  Ark.  92  ;  Tong 

2  12  Jur.  713.  And  see  Spence's  ?\  Marvin,  26  Mich.  35.  But  see  58 
Case,  2  Ph.   247  ;    Ball  v.  Ball,  2   Sim.     N.  H.  15. 

3&.  6  Heinemann's  Appeal,  96  Penn.  St. 

3  Mass.  Gen.  Sts.  c.  109,  §4;  Clark  112;  Griffin  v.  Sarsrield,  2  Dem.  4; 
v.  Montgomery,  23  Barb.  464.  58  N.  II.  15  ;  Prime  v.  Foote,  63  N.  H. 

*  Boston  v.  Young,  7  J.  J.  Marsh.  52.  In  Heinemann's  Appeal,  supra,  a 
501  :  Hall  v.  Lay,  2  Ala.  529  ;  Friesner  father  neglected  to  provide  proper 
v.  Symonds,  46  N.  J.  Eq.  521.  medical   treatment    for    his    wife    and 

485 


§  305  THE   DOMESTIC    RELATIONS.  [PART    IV. 

§  305.  Selection  of  Chancery  and  Probate  Guardians  ;  Subject 
Continued.  —  Most  frequently  the  court's  discretion  is  to  be  ex- 
ercised, whether  in  chancery  or  probate  appointments,  in  cases 
where  the  child  is  fatherless,  and  moreover  too  young  to  nomi- 
nate for  himself.  Who,  then,  shall  be  selected  ?  The  mother, 
if  living  and  competent  for  the  trust,  would  appear  to  be  the 
most  suitable  person,  unless  remarried,  and  so  in  fact  is  she 
considered  in  this  country.  But  in  English  chancery  practice 
it  is  said  that  no  great  importance  is  attached  to  her  rights ; 
while  undoubtedly  she  and  the  next  of  kin  have  together  the 
first  claim.1  And  it  is  improper  to  appoint  the  mother  without 
some  information  as  to  the  father's  family.2  On  the  other  hand, 
the  court  refuses  to  select  guardians  for  infants  residing  with 
their  mother  until  she  has  indicated  her  own  wishes.3 

In  this  country,  probate  guardians  of  fatherless  children  are 
appointed  with  more  exclusive  reference  to  a  surviving  mother's 
choice,  while  at  least  she  remains  a  widow,  and  the  next  of  kin 
are  less  favorably  regarded.  And  it  is  not  uncommon  to  find 
guiding  principles  indicated  by  statute  for  all  cases.  The  Ameri- 
can rule  is  clearly  stated  in  a  recent  New  Jersey  case  :  namely, 
that  the  mother,  and,  after  the  mother,  the  next  of  kin  of  an  in- 
fant under  fourteen  is  entitled  to  preference,  and  that  such  claim 
cannot  be  disregarded  unless  for  some  satisfactory  reason.4  It  is 
further  stated,  in  this  case,  that  a  greater  latitude  is  allowed  to 
the  court,  as  between  relatives  having  no  legal  claim  to  the  ser- 
vices of  the  child  and  the  natural  guardian  ;  and  reasons  which 

three  children,  all  of  whom  died;  and  ?•.  Wilcox,   22   Barb.  178;    Ramsay  o. 

a  guardian  of  the  surviving  minor  chil-  Ramsay,  20  Wis.  507  ;  Good  v.  Good, 

dren  was  appointed  against  his  wishes.  52  Tex.  1 ;  Leavel  o.  Bettis,  3  Bush.  74  ; 

1  Macphers.  Inf.  112.  Lord  v.   Hough,  .37  Cal.  f>57.     There 

2  Cool  i  -  Case,  fi  E.  L.  &  E<|.  47.  may  be  a  probate  guardian  appointed 
8  Lockwood  /-.    Fen  ton,  17  E.  L.  &  over  a  child  against  the  wishes  of  a  man 

Eq.  90;   In   re  Thomas,  21  E.  L.  &  Eq.  and  wife  who  have  agreed  in  writing 

524.     As   to  other    relatives,  sec  Mac-  with    the   mother  to  take  rare  of  the 

phers.  In!.  112.  child  under  certain  stipulations.     Glou- 

1  Albert  v.   Perry,   i    McCart.   540.  cester ».  Page,  105  Mass.  231.     [tisnot 

■  ■I  the  mother  to  the  child  may  proper  for  a  court  to  appoint  a  mother, 

be  made  a  condition  where  a  third  per  and,  upon  her  failure  to  give  bond  within 

Hon  i-  appointed.    4   Dem.  295.     And  the   limited   time,   appoint   a  stranger 

gee   Ri  id    i     Drake,  i   Green,  Ch.  7s;  without  notice  to  her.     Weldon  v.  Keen, 

Allen  v.   Peete,  25    Miss.  29;    People  87  N.  J.  Eq.  251 ;  cf. lb.  245. 

■is.; 


CHAP.  II.]  APPOINTMENT   OF   GUARDIANS.  §  305 

might  be  deemed  insufficient  to  bar  the  mother's  rights  might 
decide  as  between  other  relations.1  But  the  mother's  immoral 
character  since  her  husband's  death  will  fairly  debar  her.2 

The  leading  consideration  for  the  court  should  be  the  interest 
and  welfare  of  the  child  ;  and  this,  which  becomes  almost  the 
only  rule  of  choice  between  distant  kindred,  may  control  even 
the  selection  of  the  father  himself.3  Hence,  in  a  case  where 
children  had  been  left  with  their  grandparents  for  many  years 
with  the  consent  of  the  father,  who  was  a  widower  and  a  sea- 
faring man,  guardianship  was  refused  to  their  uncle,  though  he 
had  been  designated  by  the  father  on  his  death-bed.4  If  the 
child  is  fatherless,  and  the  mother's  manner  of  life  would  be 
likely  to  exercise  an  unfavorable  influence,  she  will  not  be  ap- 
pointed, nor  will  her  wishes  have  much  weight.5  Nor  is  the 
appointment  of  an  executor  or  administrator  desirable,  if  a  con- 
flict of  interests  is  thereby  created.6  Nor  the  selection  of  a 
stranger,  when  the  next  of  kin  can  be  had,  unless  the  parent 
expressly  desires  it.7  Nor  of  one  who  holds  adverse  religious 
opinions,  though  there  is  at  this  day  far  more  toleration  than 
formerly  on  this  point,  and  perhaps  more  still  in  the  United 
States  than  in  Great  Britain.8  And  the  objection  that  a  parti- 
cular appointment  will  subject  the  ward's  estate  to  extraordinary 
expense  ought  to  be  considered.9  In  general,  it  is  the  duty 
of  the  court  to  regard  the  general  character  of  the  person  who 
applies  for  letters  of  guardianship;  the  influence  he  is  likely 
to  exert,  and,  if  the  estate  be  difficult  to  manage,  his  business 
qualifications  and  financial  standing. 

1  Albert  v.  Perry,  1  McCart.  540.  6  Crutchfield's  Case,  3    Yerg.  336; 

2  LeBlanc's  Succession,  37  La.  Ann.  Isaacs  v.  Taylor,  3  Dana,  600;  Massin- 
546.  gale  v.  Tate,  4   Ilayw.  30;    Parker  v. 

3  Bennett  v.  Byrne,  2  Barb.  Ch.  216  ;  Lincoln,  12  Mass.  17. 

Comptou  v.  Compton,  2  Gill,  241  ;  Sue-  7  See  Sullivan's  Case,  I  Moll.  225; 

cession  of   Fuqua,  27    La.    Ann.   271;  Morehouse  v.  Cooke,  Hopk.  226  ;  Lady 

Badenhoof    v.   Johnson,    11    Nev.   87;  Teynham  v.  Lennard,  cited  2  Atk.  315; 

Janes  v.  Cleghorn,  63  Ga.  335;  2  Dem.  Spaun  v.  Collins,  10  S.  &  M.  624. 

43;    Vandewater   Re,   115    N.    Y.   669.  8  Underbill  v.  Dennis,  9  Paige.  202 ; 

Late  English  courts  show  an  increasing  Macphers.  Inf.  113  ;  Ex  parte  Whitfield, 

regard  for  the  child's  welfare.     Violet  2  Atk.  315;  Voullaire  v.  Voullaire,  45 

Nevins  Re,  [1891]  2  Ch.  299  ;  §  340.  Mo.  602. 

*  Foster  v.  Mott,  3  Bradf.  409.  »  Bennett  v.  Byrne,  2  Barb.  Ch.  216. 

6  Albert  v.  Perry,  1  McCart.  540. 

487 


305 


THE   DOMESTIC   RELATIONS.  [PAltT   IV. 


On  the  other  hand,  no  fanciful  reasons  should  be  allowed  to 
determine  the  selection  of  the  court  between  distant  relations. 
The  circumstance  that  the  infant  inherited  the  principal  part  of 
his  property  through  one  line  of  the  family  is  not  to  prejudice 
his  next  of  kin  in  the  other.1  But  the  fact  that  he  has  always 
been  in  the  charge  of  his  relatives  on  one  side  is  entitled  to 
weight.2  If  children  are  already  in  a  good  home,  this  is  a 
reason  why  they  should  not  be  disturbed.  But  the  mother's 
consent  to  relinquish  them  to  a  certain  relative  is  of  little  avail, 
for  it  might  have  been  extorted  from  her  under  pressure  of 
poverty.3  Although  the  prudent  choice  of  a  minor  arrived  at 
fourteen  may  be  almost  conclusive,  as  we  have  already  seen, 
yet  it  would  seem  that  while  under  that  age  his  preferences  are 
entitled  to  no  consideration.  The  separation  of  young  children 
from  one  another  is  to  be  avoided,  unless  in  other  respects  quite 
desirable.4 

The  father's  testament  constitutes  a  guardian ;  but  when  the 
appointment  is  too  informal  to  take  effect  under  the  statute,  as 
constituting  testamentary  guardianship,  a  chancery  or  probate 
guardian  must  be  appointed.  In  such  case,  the  choice  thus  in- 
formally indicated  carries  great  weight  with  the  court.5  And 
on  general  principle  the  death-bed  wishes  of  the  father  are 
considered  by  the  court ;  so  those  of  the  mother,  in  States  where 
the  mother's  choice  is  favored  at  all.6  Such  wishes  are  not 
conclusive  upon  the  court;  and  yet  they  may  sometimes  be 
sufficient  to  turn  the  scales.7 


1  Underfill]  v.  Dennis,  9  Paige,  202; 
Albert  v.  Perry,  1  McCart.  540.  See 
58  N.  II.  15, as  to  disregarding  the  ex- 
pectation  of  one  who  had  left  the  child 
a  legacy. 

-  Albert  v.  Terry,  1  McCart.  540. 

■■  lb. 

*  Marcellin,  Matter  of ,  4  Redf.  299. 

«  Hall  v.  Storer,  I  Yo.  &  C.  556; 
Marcellin,  Matter  of,  81  N.T.Snpr.  207. 

«  Rjjotl  v.  Cottee,2  Ph.  i!)L> ;  Kaye'a 

1  l..  R.  i  Ch.  887  ;  Lady  Teynham 
i    fannard,  i  Bro   P  C  302  ;  s.  c.  cited 

2  At k  815;  Bennett  v.  Byrne,  2  Barb. 
Ch.  216;  Cozine  v  Horne,  I  Bradi.  143; 

488 


Watson  v.  Wamock,  31  Ga.  716.  In  re 
Turner,  4  C.  E.  Green,  433  ;  Badenhoof 
v.  Johnson,  11  Nev.  87.  A  father  upon 
his  wife's  death  placed  the  infant  child  in 
A.'s  <-;ire,  and  afterwards  died  ;  and  A.'s 
claim  was  held  inferior  to  that  of  an 
aunt  of  the  chil  I.  Cleghorn  v.  James, 
68  <ia.  87.  The  mother's  appointment 
by  her  will  must  not  disturb  a  guardian 
appointed  at  her  request  while  she  was 
alive.     Potts  v.  Terry  (1804),  Tex. 

7  As  to  appointing  a  firm  or  a  cor- 
poration, see  supra,  §§  283,  300;  Re 
Cordova,  4  Redf.  66;  40  Minn.  7;  42 
Mich.  528. 


CHAP.  II.]  APPOINTMENT   OF   GUARDIANS.  §  306 

§  306.  Same  Subject;  Appointment  of  Married  Woman;  of 
Non-Resident,  &c  —  As  concerns  the  right  of  a  married  woman 
to  be  appointed  guardian,  there  is  doubt  and  uncertainty.  The 
dicta  are  apt  to  go  one  way  and  the  decisions  another ;  doubt- 
less out  of  judicial  deference  to  the  sex.  Some  hold  time 
married  women  are  at  common  law  capable  of  becoming  guar- 
dians ;  but  they  draw  their  conclusions  rather  from  the  analogies 
of  administration  than  from  positive  authority  in  their  favor. 
When  it  is  considered  that  chancery  and  probate  guardians  are 
a  modern  creation,  the  ancient  cases,  from  such  species  of  guar- 
dianship as  are  now  extinct,  are  hardly  worth  looking  after.  It 
is  true  there  are  several  cases  which  sustain  the  acts  of  married 
women  while  acting  as  guardians,  or  rather  quasi  guardians ;  at 
the  same  time  clear  precedents  for  their  actual  appointment  are 
wanting.1  It  is  lately  held  in  the  English  chancery  court,  that, 
while  a  married  woman  may  be  co-guardian  with  a  man,  her 
sole  appointment  is  improper.2  In  spite  of  the  liberal  tendency 
of  the  age,  we  conclude  that  while  such  guardianship  would  not 
be  deemed  absolutely  void,  and  is  in  fact  sometimes  sanctioned 
without  investigation,  public  policy  is  decidedly  against  the  ap- 
pointment. Not  the  least  important  objection  is  the  inability 
of  married  women  to  furnish  proper  recognizance  and  to  manage 
trust  property,  without  constantly  encountering  legal  obstacles, 
all  the  more  troublesome  from  the  present  uncertainty  of  the 
law  of  husband  and  wife.3  Hence  the  English  rule  has  been, 
on  the  marriage  of  a  female  guardian,  to  choose  another  in  her 
stead,  on  the  ground  that  she  is  no  longer  sui  juris,  and  has 

1  Wallis  v.  Campbell,  13  Ves.  517.  States  now  empower  a  married  woman 
This  was  the  ease  of  an  illegitimate  to  serve  as  guardian,  besides  so  inereas- 
child.  As  cited  in  Macphers.  Inf.  Ill,  ing  her  powers  and  liabilities  as  to  ob- 
it might  be  considered  authority  for  viate  objections  stated  in  the  text, 
the  appointment  of  married  women  as  Schouler,  Hus.  &  Wife,  appendix.  And 
guardians.  see  Beard  v.  Dean,  64  Ga.  248 ;  Goss  v. 

2  In  re  Kaye,  L.  R.  1  Ch.  387.  See  Stone,  63  Mich,  319.  A  woman  may 
Macphers.Inf.lll;  Anon.,  8  Sim.  346 ;  be  appointed  guardian  of  the  person 
GornalFs  Case,  1  Beav.  347.  See  fur-  and  estate  of  her  child,  although  she 
ther,  Jarrett  v.  State,  5  Gill  &  Johns,  has  married  again  and  lives  with  her 
27  ;  Palmer  v.  Oakley,  2  Doug.  433 ;  new  husband.  Hermance  Re,  2  Dem. 
Farrer  v.  Clark,  29  Miss.  195 ;  Kettle-  1,  overruling  Holley  v.  Chamberlain,  1 
tas  v.  Gardner,  1   Paige,  488;  Ex  parte  Redf  333. 

Maxwell,  19  Ind.  88.    Becent  statutes  in         3  Logan  v.  Fairlee,  Jacob,  193. 

489 


§  306  THE   DOMESTIC   RELATIONS.  [PART   IV. 

become  liable  to  the  control  of  her  husband ;  while  she  is  said 
to  be  still  at  liberty  to  go  before  the  master  to  propose  herself 
as  her  own  successor. 

Persons  residing  out  of  the  jurisdiction  will  not  usually  be 
appointed  guardians,  although  one  who  was  out  of  the  State 
might  yet  control  from  a  distance;  for,  it  is  said,  there  must 
be  some  one  answerable  to  the  court.1  But  if  the  sureties  on 
the  guardian's  bond  reside  within  the  jurisdiction  and  are  pecun- 
iarily responsible,  is  not  some  one  answerable  to  the  court  ? 
And  might  not  one  have  an  attorney  within  the  jurisdiction 
answerable  for  process,  under  statute  ?  The  cases,  however,  are 
rare  where  such  an  appointment  would  be  advantageous  to  the 
ward  for  business  reasons ;  and  hence  others  are  usually  chosen, 
both  in  chancery  and  probate.  In  some  of  the  United  States, 
the  appointment  of  non-residents  is  prohibited  by  statute ;  and 
even  without  such  prohibition  the  court  is  justified  in  withhold- 
ing letters  of  guardianship  at  discretion,  where  the  petitioner  is 
beyond  the  reach  of  State  process.2  But  the  person  selected  need 
not  reside  within  the  jurisdiction  of  the  county  court  making  the 
appointment.  Where  infants  are  domiciled  abroad,  some  one  at 
home  will  be  appointed,  if  a  guardian  is  required,  even  though 
the  father  wishes  it  otherwise.3  Exceptions  to  this  rule  have  been 
made  in  strong  cases,  and  a  non-resident  guardian  appointed.4 

A  certain  appointment  may  be  objectionable  because  of  prop- 
erty interests  adverse  to  those  of  the  minor.  Statutes  sometimes 
interpose;  as,  for  instance,  in  rendering  ineligible  the  executor 
or  administrator  of  an  estate  in  which  the  minor  is  interested.5 
The  nomination  of  some  suitable  third  person  as  guardian  by 
the  party  having  a  prior  right  carries  weight;  but  one  who  has 
thus  procured  another's  appointment  cannot  claim  letters  for 
himself.6 


1  Logan  v.  Fairlee,  Jacob,  193.  non-resident  alien   may  be  precluded. 

a  Finneyw.  State,  '.'  Mo.  227.    There  A'<  Taylor,  3  Redf.  (N   V.)  259. 
i-  ii"  -n>  I,  prohibition  in  Maine.     Berry  5  Scobey  v.  Gano,  35  Ohio  St.  550; 

v.  Johnson,  53  Me.  101.  supra,  §  305;    Kramer  v.  Mugell,  153 

:;  Stephens  v.  James,  1  M.  &K.627;  Penn.St.493.   Butcf.  1 7 R. 1. 480, where 

Lethem  v.  Hall,  7  Sim.  141.  the  ward  was  sole  residuary  legatee. 

'  Daniel   v.    Newton,  8  Beav.  4K5;        c  Eahn  v.  Israelson,  62  Tex.  221. 
In  re  Thomas,  21  E.  I..  &    Eq.  524.    A 

400 


CHAP.  II.]  APPOINTMENT   OF   GUARDIANS.  §  30? 

§  307.  Method  of  appointing  Guardian  ;  Procedure.  —  Third. 
The  usual  practice  in  chancery  is  for  the  court,  as  soon  as  the 
petition  is  presented,  to  make  an  order  for  a  reference  to  a 
master  to  approve  of  a  proper  person  for  the  guardianship.  For 
this  purpose,  the  master  is  attended  by  all  proper  parties ;  and, 
after  a  full  hearing,  he  makes  his  report,  in  which  he  mentions 
the  infant's  age  and  fortune,  the  evidence  and  legal  grounds  on 
which  his  approval  of  the  guardian  is  based,  and  the  mainte- 
nance proper  for  the  child.  The  Vice-Chancellor  confirms  or 
varies  the  report  at  his  discretion,  and  then  makes  the  appoint- 
ment.    From  his  decision  appeal  lies  to  the  full  court.1 

The  guardian  thus  appointed,  if  guardian  of  the  person  and 
estate,  is  required  to  enter  into  a  recognizance,  with  sufficient 
sureties,  to  account  regularly  or  whenever  called  upon  by  the 
court.  But,  according  to  the  modern  English  practice,  guar- 
dians of  the  person  and  not  of  the  estate  are  exempted  from  this 
requirement.2  In  some  cases,  guardians  are  appointed  by  the 
court  without  reference  to  a  master.  Thus,  where  the  father 
applies,  or  the  infant  above  fourteen  makes  a  selection,  the  court 
acts  without  reference,  out  of  regard  for  their  special  privilege.3 
And  where  the  property  of  the  infant  is  very  small,  the  same 
favor  has  been  granted,  in  order  to  save  legal  expense  to  the 
estate.4  The  child  should  usually  be  present  at  the  hearing ; 
but,  in  a  recent  Irish  case,  the  court  dispensed  with  the  require- 
ment, on  evidence  that  the  child  was  less  than  a  month  old  and 
of  delicate  health.5 

Our  American  practice  in  the  appointment  of  probate  guar 
dians  is  usually  more  simple.  Petition  is  presented  by  the 
person  desiring  the  appointment,  whereupon  a  citation  is  issued, 
for  all  parties  interested  to  appear  on  a  certain  court  day.  The 
judge,  upon  the  day  specified,  after  a  summary  hearing,  appoints 
the  guardian,  and  issues  letters  of  guardianship  upon  filing  bond 
with  proper  security.     Appeal  may  be  taken  within  a  limited 

1  Macphers.  Inf.  106,  107,  and  cases  4  Ex  parte  Bond,  11  Jur.  114. 

cited;  2  Kent,  Com.  227.  5  Stutely  v.   Harrison,    1   Ired.  Eq. 

-  Macphers.  Inf.  107,  108;  2  Kent,  256;  13  Jur.  800.     And  see  Benison  ». 

Com.  227.  Worsley,  15  E.  L.  &  Eq.  317. 

3  Supra,  §§  301,304;  Macphers.  Inf. 
78,  109. 

491 


§  308 


THE   DOMESTIC    RELATIONS. 


fPAILT   IV. 


time  by  any  person  aggrieved,  and  the  tribunal  of  last  resort 
then  hears  the  parties,  determines  the  choice,  and  makes  a  final 
decree,  —  to  which  the  lower  court  conforms  and  issues  letters 
of  guardianship  accordingly.  The  infant,  if  under  fourteen,  is 
rarely  produced  in  court,  nor  does  the  judge  make  an  order  of 
reference.1  Assent  or  attendance  in  such  proceedings  dispenses 
with  a  formal  notice  so  far  as  those  interested  are  concerned.2 

§  308.  Effect  of  Appointment  ;  Conclusiveness  of  Decree,  &c. 
—  Fourth.  The  appointment  of  a  chancery  guardian  is  of  itself 
an  act  exercised  by  the  court  of  highest  authority  in  such  mat- 
ters. The  appointment  cannot  be  impeached  elsewhere,  nor  set 
aside  by  a  common-law  tribunal.  The  court  which  creates  the 
guardian  superintends  his  acts  and  removes  him  if  necessary. 
Such  is  the  nature  of  chancery  jurisdiction  wherever  it  exists.3 
But  the  effect  of  appointments  made  by  probate  authority  is  not 
the  same.  In  general,  the  same  principles  apply  as  in  grants 
of  administration ;  probate  jurisdiction  being  much  the  same, 
whether  over  the  estates  of  deceased  persons  or  of  infants.  For 
fraud  or  excess  of  jurisdiction,  letters  of  probate  guardianship 
may  be  attacked  collaterally ;  not  otherwise.  But  a  person  sued 
in  the  common-law  courts  cannot  defend  on  the  ground  that  the 
guardian  is  unsuitable  for  his  trust;  the  letters  of  guardianship 
sufficiently  disprove  it ;   they  are  the  guardian's  credentials  of 


1  For  practice  in  particular  States, 
see  local  statutes,  also  Smith's  (Mass.) 
Prob.  Practice;  Oomst.  Dig.;  Reese, 
((ia.)  Manual;  Watson  v.  Warnock, 
31  Ga.  710.  Next  of  kin  may  appeal. 
Taff  v.  Rosmer,  14  Mich.  249.  And 
<•  /■'•  Feeley.  4  Redf.  306.  The  Geor- 
gia code  requires  appointment  made  in 
Open  ami  n-^iilar  court.      72  (Ja.  125. 

As  to  tin-  requisites  in  appointing 
guardian  for  an  insane  person,  sic 
Angell  v.  Probate  Court,  11  R.  I.  187. 
Where  the  intended  ward  is  of  full 
age,  notice   fco  him   is  the  only  notice 

needful,    iinl<  ■•-.    the    statute    prescribes 

otherwise.     Hamilton  v.  Probate  Court, 

'.»  K.   I.  204.      But  statutes  differ  on  this 

point.     Morton  v.  Sims,  64  6a.  2(.ts. 
A   minor  entitled  to  his  own  choice, 
402 


or  fourteen  years  old,  may  appeal  if 
that  choice  is  not  respected  by  the  court. 
Adams's  Appeal,  38  Conn.  304  ;  supra, 
§301;  Witham  Re,  85  Me.  360;  128 
Mass.  592.  Where  appointment  is 
made  on  the  ground  of  estate,  the  ward 
being  non-resident,  statute  requirements 
as  to  notice  must  be  strictly  pursued,  or 
all  subsequent  proceedings  may  he  ren- 
dered void.  Seaverns  v.  (ierke.  3  Saw 
yer,  353.  Liberal  discretion  of  lower 
court  in  a  selection  or  deciding  to  ap- 
point, favored  in  115  N\  Y.  669. 

2  83  Cal.  344.  A  master  is  not  en- 
titled to  notice  of  proceedings  for  the 
guardianship  <>f  Ids  apprentice.    62  N. 

II.  252. 

:1  Macphers.  Inf.  119. 


CHAP.  II.]  APPOINTMENT    OF    GUARDIANS.  §  308 

authority  everywhere,  and,  if  improperly  issued,  should  be  re- 
voked by  the  court  which  issued  them.1  The  later  and  safer 
tendency,  here,  as  in  grants  of  administration,  is  to  sustain  the 
court's  decree  against  indirect  and  collateral  attacks.2  An  oral 
appointment  as  guardian  is  not  to  be  shown  to  antedate  that 
shown  by  judicial  records  ;  but  the  records  themselves,  with  re- 
corded judicial  action  in  confirmation  of  the  recorded  appoint- 
ment should  be  respected  elsewhere.3 

The  decree  of  the  court  appointing  a  guardian  is  "prima  facie 
evidence  of  the  ward's  disability ;  4  and  is  even  held  conclusive 
in  some  cases.  It  would  be  unreasonable  to  compel  the  guar- 
dian of  an  insane  person  or  spendthrift  to  furnish  proof  of  his 
ward's  condition  in  every  collateral  suit  on  his  behalf,  and  to 
encounter  new  investigations  of  facts  already  established,  con- 
cerning which  men's  minds  greatly  differ.  But  the  prima  facie 
evidence  of  infancy  is  generally  simple  and  easily  obtained. 
The  authority  of  his  guardian  turns  upon  a  simple  question  of 
fact,  —  the  date  of  birth.  And  while  we  apprehend  that  the 
recitals  contained  in  letters  of  guardianship  afford  'prima  facit 
proof  on  this  point,  in  all  contests  involving  the  guardian'.? 
"authority,  the  presumption    thus   raised  must   be   very  slight. 


1  Speight  v.  Knight,  11  Ala.  461; 
Kimball  v.  Fisk,  39  N.  H.  1 10 ;  Mathews 
t>.  Wade,  2  W.  Va.  464;  Warner  v. 
Wilson,  4  Cal.  310.  As  to  the  effect  of 
defective  notice  in  probate  appoint- 
ments, see  Davidson  v.  Johonnot,  7 
Met.  388 ;  Breed  v.  Pratt,  18  Pick.  115; 
Brigham  v.  Boston,  &c.  R.  R.  Co.,  102 
Mass.  14 ;  Cleveland  v.  Hopkins,  2 
Aik.  394 ;  Redman  v.  Chance,  32  Md. 
42  ;  Chase  v.  Hathaway,  14  Mass.  922 ; 
People  v.  Wilcox,  22  Barb.  1 78  ;  Palmer 
v.  Oakley,  2  Dou?.  433  ;  Sears  v.  Terry, 
26  Conn.  273;  Gronfier  v.  Puymirol,  19 
Cal.  629.  As  to  other  informalities, 
see  State  v.  Hyde,  29  Conn.  564  ;  Lee 
r.  Ice,  22  Ind.  384.  The  letter  of  guar- 
dianship need  not  recite  the  mode  and 
particulars  of  nomination,  but  is  in  the 
nature  of  a  certificate  or  commission. 
King  v.  Bell,  36  Ohio  St.  460 ;  Burrows 
v.  Bailey,  34   Mich.   64.     A  guardian 


appointed  by  the  probate  court  of  a 
State  in  rebellion,  must  be  reappointed 
when  the  rightful  government  is  re- 
established. Troy  v.  Ellerbe,  48  Ala. 
621. 

Where  there  was  jurisdiction  for 
appointment  both  on  grounds  of  lunacy 
and  infancy,  presumption  is  favored 
after  lapse  of  time  that  the  court  madf- 
the  appointment  cover  both  grounds,  or 
performed  its  full  duty  King  v  Bell. 
36  Ohio  St.  460.  Here  a  new  bond  was 
taken  after  the  ward  arrived  at  full  age. 
Under  the  Georgia  code  an  appoint- 
ment made  in  chambers  by  the  judge  is 
void.     72  Ga.  125.     Cf.  65  Iowa,  629. 

2  See  §  303;  Schouler,  Executors, 
§  160;  15.3  Penn.  St.  493. 

3  53  Ark.  37  ;  Holden  v.  Curry,  85 
Wis.  504. 

4  White  v.  Palmer,  4  Mass.  147. 

493 


§  309  THE   DOMESTIC   RELATIONS.  [PART   IV. 

since  it  is  common  to  issue  letters  of  probate  guardianship  upon 
the  mere  allegation  of  infancy  in  the  petition  and  without 
special  proof.1 

One  who  has  been  appointed  guardian  and  acted  as  such,  can- 
not deny  the  jurisdiction  of  the  court  which  appointed  him  in 
a  collateral  suit.2  If  he  ascertains  that  his  appointment  was 
without  jurisdiction,  he  should  surrender  his  letters  at  once  and 
cease  to  act.  But,  as  we  shall  presently  see,  a  liability  may 
exist  from  the  fact  that  one  irregularly  or  wrongly  appointed 
undertakes  the  office  of  guardian.3  The  court's  appointment  of 
a  guardian  does  not  relate  back  like  that  of  ail  executor  or 
administrator.4 

S  309.  Civil-Law  Rule  of  appointing  Guardians.  —  The  prin- 
ciples of  the  civil  law,  as  later  adopted  in  Holland,  France,  and 
Spain,  with  reference  to  the  jurisdiction  and  method  of  appoint- 
ing guardians,  differ  not  greatly  from  ours.  The  jurisdiction 
competent  to  make  the  selection  was  that  of  the  domicile  of  the 
minor,  or  in  which  his  property  was  situated.  Under  the 
Trench  Code,  a  family  council  is  called  together  at  the  instance 
of  the  parties  interested,  and  nominates  a  suitable  person  or 
persons  to  take  the  trust,  where  the  children  are  orphans  and 
not  otherwise  provided  for ;  and  these  persons,  when  they  are 
approved  by  the  judge,  take  an  oath  well  and  faithfully  to  dis- 
charge their  trust  and  complete  the  necessary  qualifications. 
In  Louisiana,  the  selection  is  made  by  the  family  council  in  a 
similar  manner.3 

1  Leonard  v.  Leonard,  14  Pick.  280.  4  Prior  acts  of  the  gnardian  respect- 
See  2  Greenl.  Evid.  §§  363-368.  ins;  the  ward's  property   are  not  vali- 

2  Thurston  v.  Holbrook's  Estate,  31  dated  by  his  new  credentials.  Holden  v. 
Vt.  354  ;  Hines  v.  Mullins,  25  Ga.  696  ;  Curry,  85  Wis.  504  ;  Huntsman  v.  Fish, 
Fox  v.  Minor,  32  Cal.  Ill;  State  v.  36  Minn.  148.  Qu.  as  to  a  testamentary 
Lewis,  73  N.  C.  138.  guardian.     Nor  do  the  quasi  guardian's 

8  See  quasi  Guardian,  post,  c.  4.     A  mistaken  acts  or  representations  estop 

general  appointment  will  be  construed  the    infant    or    his    guardian    duly    ap- 

as  an   appointment  with  reference  to  pointed.     Sherman  v.  Wright,  49  X.  Y. 

certain  property  only,  when  otherwise  228;  78  Tex.  378. 

ft  would  not  be  valid.     Davis  v.  Hudson,  63  Bnrge,  Col.  &  For.   Laws,  938- 

29  Minn.  27.  9*3;  2  Kent,  Com.  231. 
494 


CHAP.  III.]  TERMINATION  OF  GUARDIAN'S  AUTHORITY.    §  311 


CHAPTER  III. 

TERMINATION   OF  THE   GUARDIAN'S   AUTHORITY. 

§  310.  How  the  Guardian's  Authority  is  terminated.  —  Guar- 
dianship lasts  until  the  end  of  the  period  for  which  it  \va3 
instituted.  But  it  may  be  sooner  terminated  by  the  death  or 
marriage  of  the  ward,  or  by  the  death,  resignation,  removal,  or 
supersedure  of  the  guardian  himself;  or,  if  the  guardian  be  a 
female,  by  her  marriage.  These  topics  will  be  considered  in 
order. 

§  311.  Natural  Limitation  Ward  of  Age,  &c.  —  As  the  rela- 
tion of  guardian  and  ward  usually  exists  for  merely  temporary 
purposes,  it  is  plain  that,  when  those  purposes  are  fulfilled, 
the  trust  must  terminate.  The  object  of  guardianship,  in  the 
case  of  infants,  is  fulfilled  when  the  infant  becomes  of  age, 
for  he  is  then  free  and  competent,  under  the  law,  to  transact 
his  own  business  and  control  his  own  person.  No  guardian, 
therefore,  of  an  infant,  whether  a  socage,  natural,  testamen- 
tary, chancery,  or  probate  guardian,  can  act  in  such  capacity 
after  the  ward  is  twenty-one  years  old  or  has  reached  majority  ; 
but  should  present  his  account  and  settle  with  the  late  ward.1 
Termination  thus  of  the  guardianship  is  equivalent  to  the  dis- 
charge of  the  guardian,  as  various  codes  are  construed  ;2  subject, 
however,  to  the  appointing  court's  jurisdiction  over  the  guardian 
to  compel  final  account  and  settlement  of  his  trust.3 

But  the  natural  limitation  of  the  guardian's  authority  may 
be  even  sooner,  if  derived  from  testamentary  appointment. 
For  the  testator  may  designate  a  shorter  period  or  some  par- 
ticular event  which  shall  determine  the  relation.  Thus,  if  he 
appoints  his  wife  to  be  guardian  until  her  remarriage,  her  trust 

1  1   Bl.  Com.  461,  462,  Harg.  n. ;  2  Woods,  C.  C.  724;  Stroup  v.  State,  70 

Kent,  Com.  221-227.     Statutes  relative  Ind.  495. 

to  guardianship  are  sometimes  explicit  2  Tate  v.  Stevenson,  55  Mich.  320. 

on   this   point.     Bourne   v.  Maybin,   3  3  People  v.  Seelye,  146  111.  189. 

495 


§  311  THE   DOMESTIC   RELATIONS.  [PART    IV. 

terminates  on  marrying  again.1  And  if  no  successor  was  in- 
dicated in  the  will,  a  chancery  or  probate  appointment  must 
supply  the  vacancy.2 

The  legal  authority  of  guardians  in  socage  also  terminated, 
strictly  speaking,  when  the  infant  became  fourteen.3  So  did 
that  of  guardians  for  nurture,  as  distinguished  from  those  by 
nature.4  This  was  because  the  ward  was  recognized  as  partially 
qualified  to  act  for  himself,  having  passed  through  the  period 
of  nurture.  He  was  then  allowed  to  elect  a  guardian.5  Still 
the  guardianship  continued  effectual  during  minority  in  both 
cases,  unless  a  new  choice  was  made  by  the  ward.6  But  no 
guardians  in  socage,  for  nurture,  testamentary,  or  by  judicial 
appointment,  were  ever  rendered  devoid  of  power  by  the  mere 
fact  that  the  infant  had  passed  the  period  of  nurture.  An 
anomalous  exception  is  found  in  Ohio,  where  it  has  been  held 
that  probate  guardianship  wholly  ceases  when  the  ward  reaches 
twelve  if  a  female,  or  fourteen  if  a  male,  and  that  a  new  appoint- 
ment must  then  be  made.7  This  rule  is,  however,  one  of  statu- 
tory construction ;  and  while  the  ward,  on  arriving  at  fourteen, 
may  have  the  statute  right  to  choose  a  new  probate  guardian, 
the  general  rule  is  that  such  guardian  should  be  first  designated, 
judicially  approved  and  qualified  before  the  former  guardian  can 
be  considered  as  discharged  from  his  trust.8 

No  more  precise  limit  can  be  assigned  to  the  authority  of 
guardians  over  insane  persons  and  spendthrifts,  than  that  of 
the  ward's  necessities.  When  he  becomes  sufficiently  restored 
to  reason,  or  is  otherwise  fit  to  control  his  own  person  and 
estate,  this  guardianship  ceases  ;  for  the  purposes  of  the  trust 
are  felt  no  longer.  But  a  period  so  difficult  to  fix  should  be 
judicially  determined;  for  which  cause  a  formal  discharge  from 

1  Belby  ».  Selby,  2  Eq.  Ca.  Ah.  488  ;  6  Rex  v.  Pierson,  Andr.  313 ;  Men- 

Holmes  v.  Field,  12  111.  424;  Oorrigan  dea  v.  Mendes,  3  Atk.  624.    And  see 

v.  Kiernan,  1  Bradf.  208.  Maephers.  Inf.  41,  65;  Byrne  v.  Van 

-  Maephers.  Inf.  104,  and  cases  cited;  Hoesen,  5  Johns.  66. 
supra,  §§  287,  290,303.  7  Perry  v.  Brainard,   11   Ohio,  442; 

'■'■  1   HI.  Com.  461,  JIarg.  n. ;  2  Kent,  Maxson  v.  Sawyer.  12  Ohio,  195.     See 

( lorn.  222.  Dibble  v.  Dibble,  8  Ind.  307 ;  Matter  of 

*  lb.  Dyer,  5  Paige,  534. 

'•  l  Bl.  Com,  462,  Harg,  n.\  and  see         s  Bryce  v.  Wynn,  50  Ga.  332;  supra, 

C.  1,  siijird.  §  301. 

490 


CHAP.  III.]  TERMINATION  OP  GUARDIAN'S  AUTHORITY.    §  313 

guardianship  is  to  be  sought  and  obtained,  and  meantime  the 
guardian's  authority  will  continue.1 

§  312.  Death  of  the  Ward.  —  Death  of  the  ward  necessarily 
terminates  guardianship.  And  after  the  ward's  death  the  guar- 
dian's only  duty  is  to  settle  up  his  accounts  and  pay  the  balance 
in  his  hands  to  the  ward's  personal  representatives,  whereupon 
his  trust  is  completely  fulfilled.2  Where  administration  is 
granted  upon  the  estate  of  a  deceased  ward,  the  assets  vest  at 
once  in  the  administrator,  whose  title  dates  back  by  relation  to 
the  ward's  decease.3 

§  313.  Marriage  of  the  Ward.  —  The  lawful  marriage  of  any 
ward,  whether  male  or  female,  must  necessarily  affect  the  rights 
of  the  guardian.  So  far  as  the  ward's  person  is  concerned,  there 
can  be  no  question  that  the  guardianship  ends.  Marriage  is 
paramount  to  all  other  relations,  and  its  proper  continuance 
being  inconsistent  with  guardianship  of  the  person,  the  latter 
yields  to  it,  whichever  may  be  the  sex  of  the  ward.  But  as  to 
the  estate,  the  rule,  in  view  of  late  married  women's  statutes, 
is  not  so  clear.  If,  however,  a  male  ward  marries  a  female, 
whether  she  be  minor  or  adult,  his  guardian  retains  power  over 
his  estate,  as  before,  until  he  becomes  of  age.4 

Hence  arises  a  difficulty  where  a  male  and  female  ward 
marry,  both  being  minors  and  having  estates  in  the  hands  of 
their  respective  guardians.  Does  the  husband,  though  under 
age,  take  all  the  rights  of  an  adult  husband  ?  Or  does  the 
wife's  estate  remain  in  keeping  of  her  guardian  until  the  hus- 

1  Dyce  Sombre's  Case,  1  Phil.  Ch.  ward  after  the  latter's  death.  Barrett 
437;  Hovey  v.  Harmon,  49  Me.  269;  v.  Provincher  (1894),  Neb.  Nor  con- 
Wendell's  Case,  1  Johns.  Ch.  600;  tinue  a  suit  already  begun.  Richmond 
Kimball  v.  Fisk,  39  N.  H.  110;  Chase  v.  Adams  Bank,  152  Mass.  359.  And 
v.  Hathaway,  14  Mass.  222 ;  Hooper  v.  see  Mechanics  Bank  v.  Waite,  150 
Hooper,  26  Mich.  435;    55   Mich.   320.  Mass.  234. 

The  issue  here  is  whether  the  ward  has  4  Reeve,  Dom.    Rel.   328 ;    2    Kent, 

sufficiency  of  reason  to  manage  his  own  Com.  226;    Bac.  Abr.  Guardian    (E)  ; 

estate.     Cochran  v.  Amsden,  104  Ind.  Eyre  v.  Countess  of   Shaftesbury,  2  P. 

282.  Wms.  103;  Mendes  v.  Mendes,  3  Atk. 

2  In  some  States  the  guardian  is  619  ;  lb.  1  Ves.  89  ;  Jones  v.  Ward,  10 
charged  with  administering  his  de-  Yerg.  160.  The  guardian  of  an  infant 
ceased  ward's  estate.  Beavers  v.  Brew-  husband  is  clothed  with  the  husband's 
ster,  62  Ga.  574.  power  of  reducing  to  possession.     Ware 

3  Sommers  v.  Boyd,  48  Ohio  St.  648.  v.  Ware,  28  Gratt.  670.  And  see  supra, 
A  guardian  cannot  sue  on  behalf  of  his  §§  56,  71. 

32  497 


§  313  THE  DOMESTIC   RELATIONS.  [PART    IV 

"band  is  old  enough  to  control  it  in  person  ?  The  better  opinion 
is  that  it  goes  to  the  husband,  whatever  his  age.  The  inevitable 
consequence  is  that  the  husband's  guardian  must  take  it  from 
the  wife's  guardian,  and  hold  both  estates  during  minority. 
This  seems  an  awkward  arrangement,  but  it  is  nevertheless  the 
lawful  one.  More  troublesome  would  be  a  case  under  the 
recent  statutes  in  this  country  relative  to  married  women,  con- 
cerning which  we  do  not  find  an  important  decision.  But  it 
seems  the  technical  rule  applies,  as  before,  to  the  detriment  of 
the  female  ward's  interests.  It  might  be  well  to  declare  by 
statute  that  the  wife's  guardian  shall  continue  to  manage  her 
estate  during  her  minority.1 

The  marriage  of  the  female  ward,  it  is  said,  does  not,  ipso 
facto,  determine  the  authority  of  her  guardian  over  her  estate. 
Hence  an  order  of  court,  transferring  the  custody  of  the  prop- 
erty to  the  husband,  is  first  necessary ;  to  which  order  the  hus- 
band will  be  entitled  upon  motion.  Such  is  the  rule  declared 
in  New  York.2  But  while  in  England  the  court  of  chancery 
never  appoints  a  guardian  for  a  female  infant  after  marriage, 
neither  does  it  discharge  an  order  for  a  guardian  because  of 
marriage ;  because,  as  Mr.  Macpherson  thinks,  the  marriage  of 
a  female,  if  valid,  supersedes  guardianship,  of  its  own  force.3 
Probate  wards  in  this  country  are  frequently  married,  and  their 
guardians  settle  their  accounts  without  order  of  court  or  revoca- 
tion of  letters,  on  the  supposition  that  the  marriage  ipso  facto 
puts  an  end  to  their  authority.  In  some  recent  cases  of  alleged 
trespass  on  a  female  infant's  lands,  it  has  been  ruled  that  the 
adult  husband  succeeds  to  the  place  of  her  guardian,  all  other 
guardianship  ceasing  at  her  marriage.4  And  it  is  held  that  a 
female  infant's  guardian  is  not  responsible  to  her  for  money 
which  was  hers,  and  which  he  has  paid  over  to  her  adult  hus- 
band, in  good  faith,  without  any  notice  or  presumption  of  her 


1   Bee  Keeve,  Dom.  Tlcl.  328  ;  2  Kent,  Ga.  467  ;  Anon.  8  Sim.  346 ;  Armstrong 

Com.  226;   A  lion.  8  Sim.  846.  »'■  Walkup,  12  Gratt.  608. 

J  Whitaker's    Case,    4    Johns.    Ch.  3  Macphers.   Inf.  113,  citing  Roach 

370.    lint  see  contra,  Jones  r.  Ward,  v.  Garvan,  1  Ves.  160;  8  Sim.  336. 
lo  V.  eg,  I'.o;  Nicholson  V,  Wilborn,  13  4  Porch  v.  Fries,  3  C.  E.  Green,  204; 

Bartlett  v.  Cowles,  15  Gray,  445. 

498 


CHAP.  III.]  TERMINATION  OF  GUARDIAN'S  AUTHORITY.    §  315 

non-concurrence.1  The  local  statute  is  sometimes  explicit 
enough  to  relieve  one  of  doubt  on  the  main  question.2 

§  314.  Death  of  the  Guardian.  —  Guardianship  is  terminated 
by  the  death  of  the  guardian.  But  the  ward  does  not  thereby 
necessarily  become  free,  for  a  successor  in  the  trust  continues 
to  control  him.  The  executor  or  administrator  of  the  guardian, 
as  such,  bus  no  authority  ;  fur  guardianship  is  a  personal  trust 
and  not  transmissible.  But  he  shonld  close  the  accounts  of 
the  deceased  guardian  in  court,  and  pass  the  balance  over  to  the 
successor.  This  successor  is  the  person  next  indicated  in  the 
will  appointing  testamentary  guardians,  or  the  survivor  of  joint 
guardians,  or  some  one  appointed  in  chancery  or  probate  to  fill 
the  vacancy,  as  the  case  may  be.3 

§  315.  Resignation  of  the  Guardian.  —  The  office  of  a  guar- 
dian was  regarded  as  something  so  honorable  at  the  common 
law  that  it  could  not  be  easily  refused,  much  less  resigned. 
Natural  guardians,  of  necessity,  could  not  resign.  We  have 
seen,  in  another  connection,  how  far  the  natural  guardian  may 
practically  surrender  his  children's  custody,  by  allowing  others 
to  adopt  them,  by  placing  them  in  a  charitable  institution,  and 
the  like  ;  which  is  the  only  sense  in  which  this  guardianship 
may  be  considered  as  voluntarily  transferred.  So  guardians  in 
socage,  being  designated  by  the  law,  could  not  in  strictness 
resign;  if  they  could  shift  their  authority  at  all,  it  must  have 
been  by  assignment.  There  is  reason  to  believe  that,  before 
the  statute  of  Marlbridge,4  they  could  assign,  but  only  to  the 

1  Beazley  v  Harris,  1  Bush,  533.  658.  When  a  guardian,  whose  author- 
See,  as  to  the  wife's  remedies,  Story  v.  ity  has  terminated  on  the  ward's  arrival 
Walker,  64  Ga.  614.  at  majority,  becomes  administrator  of 

2  Some  local  codes  declare  that  the  ward's  estate,  the  ward  dying  soon 
when  the  female  ward  marries  an  adult  after  and  before  the  guardianship  ac- 
the  guardianship  shall  cease.  Bourne  counts  are  closed,  his  liability  for  the 
v.  Maybin,  3  Woods,  C.  C.  724;  Kid-  property  is  that  of  administrator  Hut- 
well  v.  State,  45  Ind.  27  ;  State  v.  Joest,  ton  v.  Williams,  60  Ala.  107.  See  post, 
46  Ind.  235.  In  Alabama  the  married  c.  9,  as  to  marriage  of  a  ward.  As  to 
ward  may  call  her  guardian  to  account,  settlement  of  a  guardian's  account  by 
Wise  e.  Norton,  48  Ala.  2 14.  See,  as  to  his  administrator,  see  66  Ala.  283;  156 
adult  husband's  settlement,  60  Ind.  41.  Penn.  St.  297.  Or  where  the  guardian 
And  see  as  to  intermarriage  of  guardian  died  without  making  a  settlement,  and 
and  his  ward,  1  Ind.  App.  441.  long  after  the  ward's  minority.     65  Cal 

3  Co.  Litt.  89  ;  Bac.  Abr.  Guardian  228. 

(E);  Connelly  v.  Weatherly,  33   Ark.  *  52  Hen.  III.  c.  17. 

499 


§  315  THE   DOMESTIC    RELATIONS.  [PART  IV. 

extent  of  placing  the  ward's  body  in  custody  of  another.  In 
later  times,  no  assignment  whatever  has  been  permitted.  For, 
as  Lord  Commissioner  Gilbert  observed,  guardianship  in  socage 
is  an  interest,  not  of  profit,  but  of  honor,  committed  to  the  next 
of  kin,  inherent  in  the  blood ;  and  therefore  not  assignable.1 

The  resignation  of  a  testamentary  guardian  is  not,  as  a  rule, 
permitted.  In  1752  the  guardians  of  the  young  Earl  of  Spencer, 
who  was  then  in  his  eighteenth  year,  petitioned  the  court  of 
chancery  that  they  might  be  discharged  from  their  trust,  as  he 
was  then  going  abroad  on  his  travels,  and  would  not  be  under 
their  care.  Lord  Hardvvicke  (as  the  reporter  says)  refused  it 
with  some  warmth,  as  a  thing  which  had  never  been  done  at  the 
request  of  the  guardians  themselves ;  and  added,  that,  if  they 
would  not  continue  to  act  in  the  trust,  as  they  had  accepted  it, 
he  should  compel  them.  But  afterwards,  at  the  importunity  of 
counsel,  finding  that  the  mother  and  the  infant  also  acceded  to 
the  request,  he  yielded  so  far  as  to  allow  a  petition  to  be  filed 
on  behalf  of  the  infant,  upon  which  he  made  an  order  that  the 
care  and  direction  of  the  infant's  education  and  person  should 
be  committed  to  two  near  relatives  until  further  order,  and  that 
the  allowance  for  his  maintenance  and  education  should  be  paid 
to  them.  But  in  doing  so  the  Lord  Chancellor  declared  that 
while  the  special  circumstances  of  this  case  justified  his  action, 
he  would  not  in  general  comply  with  such  petitions,  nor  should 
this  case  be  drawn  into  precedent.  The  court,  he  added,  must 
take  care  of  the  infant,  even  though  it  did  not  punish  the  guar- 
dian for  not  doing  so.2  Though  this  was  a  case  of  testamentary 
guardianship,  we  presume  the  rule  to  be  equally  strict,  or  nearly 
so,  in  case  of  a  chancery  guardian.  In  either  instance  the  court 
can  make  an  order,  as  deemed  best  for  the  infant's  interests. 
There  need  be  no  summary  removal.  Chancellor  Kent,  in  Ex 
parte  Crumb,  claimed  that  chancery  could  doubtless  discharge 
or  charge  a  guardian,  even  if  appointed  by  a  surrogate  ;  but  that 
in   the  ease   of  a  testamentary  guardian   there  should  be   very 

1  (.ill.   Eq.  Rep.  175.     For  full  dis-         "  Spencer  v.  Earl  of   Chesterfield, 
camion,  see  Macphere.  Inf.  25-27;  Co.    Ambl.  146. 
J. in.  88  b,  Barg.  n.  13,  and  authorities 
c  [ted, 

500 


CHAP.  III.]  TERMINATION  OF   GUARDIAN'S  AUTHORITY.    §  31G 

special  reasons  for  interference.  He  refused  here,  however,  to 
make  any  change,  there  being  no  special  cause  shown.1 

It  is  now  frequently  provided  by  statute  that  probate  guar- 
dians and  other  trust  officers  may,  in  the  discretion  of  the 
court,  be  allowed  to  resign.  But  in  absence  of  such  legislation 
it  would  appear  that  no  such  guardian  can  resign  as  a  matter  of 
right;  nor  can  the  probate  court  legally  accept  his  resignation 
and  appoint  a  successor.  Yet  it  is  held  in  Illinois  that,  under 
a  statute  which  permits  the  judge  "to  remove  guardians  for 
good  and  sufficient  cause,"  he  may  consider  resignation  a  suffi- 
cient cause,  and  thereupon  discharge  the  guardian.2  There  is 
something  harsh  and  offensive  in  the  removal  of  a  guardian 
from  office.  Moreover,  numerous  unforeseen  emergencies  may 
arise,  so  as  to  render  the  continuance  of  the  trust  improper ;  as 
if  the  guardian  should  become  a  confirmed  invalid,  or  make 
himself  obnoxious  to  the  ward  and  his  relations,  or  display  a 
want  of  prudence  in  managing  the  estate  not  inconsistent  with 
good  intentions  nor  sufficiently  gross  to  justify  a  court  in  re- 
moving him.  He  might  be  fully  aware  of  the  advantage  of  a 
change  to  all  parties  concerned,  and  might  desire  to  be  relieved, 
provided  he  could  withdraw  with  honor,  and  without  submitting 
to  a  humiliating  investigation  of  petty  and  insufficient  grounds 
of  complaint.  This  opportunity  is  afforded  in  allowing  him  to 
resign.  So,  too,  the  guardian's  convenience,  apart  from  all  other 
considerations,  might  lead  him  to  withdraw.  And  further,  as 
one  has  observed  of  testamentary  appointees,  "  it  can  never  be 
for  the  infant's  benefit  to  continue  him  in  the  care  of  a  negligent 
or  reluctant  guardian."  3 

§  316.  Removal  and  Supersedure  of  the  Guardian.  —  The 
chancery  court  may  undoubtedly  remove  all  guardians  of  its 
own  appointment,  and  substitute  others  at  discretion  for  proper 

i  Ex  parte  Crumb,  2  Johns.  Ch.  439.  dianship  of  a  lunatic)      Where  a  guar- 

See  2  Kent,  Com.  227.  dian  tenders  his  resignation,  the  more 

2  Young  v.  Lorain,  11  HI.  624.  See  correct  form  of  judicial  order  would  be 
Pepper  v.  Stone,  10  Vt.  427.  that  the  resignation  is  accepted  ;  vet  it 

3  Macphers.  Inf.  128,  commenting  is  held  that  the  probate  court  may 
upon  Spencer  v.  Earl  of  Chesterfield,  without  error  enter  an  order  removing 
supra.  As  to  a  guardian's  resignation,  such  guardian.  Brown  v.  Hnutsman, 
see  King  v.  Hughes,  52  Ga.  600  (guar-  32  Minn.  466. 

501 


§  316  THE   DOMESTIC    RELATIONS.  [PART  IV. 

cause.  This  rule  exteuds  still  further  ;  for,  according  to  Ameri- 
can authority,  chancery  may  remove  all  guardians,  whether 
appointed  by  the  court  itself,  by  probate  tribunals,  by  testa- 
ment, or  even  by  express  act  of  the  legislature,  whenever  the 
guardian  abuses  his  trust  or  the  interests  of  the  ward  require  it.1 
This  statement  is  somewhat  too  sweeping,  so  far  as  the  English 
courts  are  concerned.  So,  too,  probate  tribunals  are  authorized 
in  most  if  not  all  of  the  States  to  remove  guardians  of  their  own 
appointment  on  good  and  sufficient  cause.2  And  the  removal  of 
a  guardian  by  a  decree  of  the  appellate  probate  tribunal  termi- 
nates summarily  the  guardianship  granted  below.3 

And  as  two  persons,  or  sets  of  persons,  cannot  at  the  same 
time  hold  the  same  trust,  it  follows  that  one  guardian  must  be 
removed,  or  a  vacancy  otherwise  created,  before  the  court  can 
make  a  new  appointment.  This  principle,  apparently  simple, 
has  sometimes  been  overlooked ;  when,  for  instance,  a  court  has 
issued  new  letters  without  revoking  the  old,  or  seeks  to  super- 
sede a  testamentary  by  a  probate  guardian.  The  appointment 
of  a  new  guardian  does  not  of  itself  terminate  the  authority  of 
one  previously  chosen.  It  is  an  act  without  jurisdiction,  and 
void.  But  natural  guardians  need  not  be  formally  removed, 
nor  guardians  in  socage.  The  rule  applies  only  to  guardians 
testamentary  and  guardians  by  judicial  appointment,  who  hold 
by  a  higher  authority  than  either  of  these.4 

If  a  guardian  does  not  behave  to  the  satisfaction  of  the  court 

1  Cowls  v.  Cowls,  3  Gilm.  435.  Sec  3  Even  though  the  cnse  is  sent  back 
Ex  parte  Crumb,  2  Johns.  Ch.  439  ;  Dis-  to  the  lower  tribunal  for  further  pro- 
brow  v.  Henshaw,  8  Cow.  349.  A  fces-  ceedings.  156  Mass.  277.  When  a  guar- 
tamentary  guardian,  in  many  States,  dian  who  has  been  removed  from  office 
may  now  be  removed  on  the  same  appeals,  and  another  has  been  appointed 
grounds  which  warrant  the  removal  of  a  and  qualified  in  his  stead,  the  office  de- 
probate  guardian.  Damarell  v.  Walker,  volves,  pending  a  final  decisiou.  State 
l'  Redf.  198,  But  sound  discretion  v.  McKown,  21  Vt.  503. 
should  be  used.  Sanderson  /'.Sander-  4  Bledsoe  v.  Britt,  6  Yerg.  458; 
son,  79  V  ('.  369,  Grant  '•.  Whitaker,  1  Murpli.  231 ;  Rob- 

'-'  Simpson  '*.  Gonzales,  15  Fla.  9;  inson  r.  Zollinger,  9  Watts,  1(59;  Fay 
//■  I  lenient,  25  X.  J.  Eq.  508;  Mc-  v.  Hnrd,  8  Tick.  528;  Thomas  v.  Bur- 
Phillips  v.  McPhillips,  9  R.  I.  536.  An  ras,  23  Miss.  550;  2  Ch.  Cas.  237; 
order  of  removal,  where  the  eourl  may  Morgan  v.  Dillon,  9  Mod.  141;  Copp  v. 

remove ai  it-  own  instance,  is  not  invalid     Copp,  20  N.  II.  284. 

ed     "ii     a    defective    petition. 

Cherrj  v.  Wallis,  65  Tex.  442. 
502 


CHAP.  III.]    TERMINATION  OF  GUARDIAN'S  AUTHORITY.    §  31G 

of  chancery,  orders  regulating  his  conduct  are  frequently  made 
upon  him;  and  if  any  such  steps  be  taken  as  to  induce  sus- 
picion that  the  infant  will  suffer  by  the  conduct  of  the  guar- 
dians, the  court  will  interpose.1  This  is  the  English  rule  as  to 
guardians  in  general.  But  in  this  country  probate  guardianship 
is  usually  determined  for  misconduct  by  a  summary  removal. 

There  can  be  no  removal  of  a  probate  guardian  without  cause 
shown.2  Courts  of  chancery  are  equally  bound  to  observe  this 
principle ;  but  their  discretion  is  absolute.  Some  of  our  codes 
make  it  imperative  that  a  statutory  ground  exist  for  removing 
one  guardian  and  appointing  another;3  and  where  a  statute 
enumerates  the  grounds  of  removal,  grounds  not  enumerated 
authorize  no  removal.4  A  mere  stranger  cannot  apply  to  have 
a  guardian  removed  ;  it  must  be  a  party  in  interest,6  Nor  can 
one  who  has  been  properly  removed,  though  the  mother  herself, 
claim  any  right  of  recommending  a  successor.6 

Among  the  causes  which  have  been  deemed  sufficient  for  the 
removal  of  a  guardian  are  these :  Appointment  to  the  trust 
without  proper  notice  to  other  parties  interested.7  Gross  and 
confirmed  habits  of  intoxication.8  Any  breach  of  official  duties 
amounting  to  misconduct.9  Failure,  after  being  ordered  to  do 
so,  to  file  inventory  or  accounts  as  required  by  the  terms  of  his 
trust.10     Employing  the  ward  or  using  the  ward's  funds  for  the 

1  Roach  v.  Garvin,  1  Ves.  160;  Duke  removal.  Dull's  Appeal,  108  Perm.  St. 
of  Beaufort  v.  Berty,  1   P.  Wins.  705.  604. 

2  Whitney  v.  Whitney,  7  S.  &  M.  4  Kahn  v.  Israelson,  62  Tex.  221  ;  2 
740.  Dem.  430. 

3  2  Dem.  (N.  Y.)  439;  4  Dem.  153.  5  Colton  v.  Goodson,  1  How.  (Miss.) 
Mere   delay  or  omission  to  file  an  in-  295. 

ventory  or  account  which   involves  no  °  Hamilton  v.  Moore,  32  Mi>s.  205. 

injury   is    insufficient    ground    for   re-  "•  Morehouse  v.  Cooke,  Hopk.  22f>  ; 

moval ;    the   guardian    should    first    he  Ramsay  v.  Ramsay,  20  Wis.  507. 

ordered  at  least  to  file  them.     2  Dem.  8  Kettletas  v.  Gardner,  1  Paige,  Ch. 

439  ;  Johnson  v.  Metzger,  95  Ind.  307.  488. 

Nor  misconduct  of  others,  at  which  the  9  Barnes   v.    Powers,    12    Ind.  341; 

guardian   himself  did    not   connive.     4  Sweet     v.     Sweet,    Speers     Eq.    309  ; 

Dem.  153.  O'Neil's  Case,   1   Tuck.   (X.    Y.   Suit.) 

Though    adverse    interest,   such  as  34. 

being  executor  or  administrator  of  an  10  Kimmel  v.  Kimmel,  48  Ind.  203; 

estate  in   which   the    ward    was   inter-  Dickerson  v.   Dickerson,  31    X.  J.  Eq. 

ested,  is  an  objection  to  appointing  one  652.     See  2  Dem.  439.     The  failure  to 

guardian,  it  is  not,  after  long  lapse  of  file  an  inventory  may  be  justifiable.     95 

time,  to  be  set  up  equally  as  a  cause  of  Ind.  307. 

503 


316 


THE   DOMESTIC   RELATIONS. 


[PART  IV. 


guardian's  own  advantage,  to  the  ward's  detriment.1  Failure 
to  support  the  ward  with  income  ample  for  doing  so,  especially 
if  the  guardian  be  the  father.2  Abandonment  of  the  trust.3 
Criminal  conviction.4  Ignorance  or  imprudence  on  the  part  of 
the  guardian,  whereby  the  ward's  interests  suffer.5  Waste  of 
the  ward's  estate.6  But  not  insolvency  alone;  though  it  is 
otherwise  where  one  has  been  adjudged  a  bankrupt,  or  is  guilty 
of  fraud.7  Nor  is  intermeddling  with  the  estate  before  qualifi- 
cation as  guardian  a  ground  for  removal,  if  in  good  faith  and 
by  advice  of  counsel.8  In  Indiana,  as  the  statute  provides,  one 
can  be  displaced  for  unfaithful  performance  of  the  trust  or 
insufficient  security.9  Guardians  may  in  some  States  be  re- 
moved wherever  it  will  be  for  the  ward's  interest.10  It  appears 
that  there  may  be  a  combination  of  circumstances  to  justify  the 
removal.11  "  Improper  conduct,"  in  respect  of  the  care  of  the 
property  or  of  the  ward's  person,  is  sometimes  the  statute  rule.12 
And  in  Massachusetts  such  conduct  of  a  guardian  as  tends  to 
alienate  his  infant  ward's  affections  from  the  mother,  who  is 
a  person  of  good  character,  will  justify  his  removal,  notwith- 
standing the  mother  may  have  remarried;13  and  so  will  mere 
unsuitableness  without  misconduct  of  any  kind.14  Different 
local  codes  will  be  found  to  prescribe  varying  rules  in  this 
respect. 

Religious  opinions  were  formerly  made  a  test  of  the  guar- 
dian's capacity  to  act.  But  such  conflicts  seldom  arise  at  the 
present  day.  It  was  held  in  a  Pennsylvania  case,  a  few  years 
ago,  that  difference  of  belief  on  religious  subjects  constitutes  no 


1  Snavely   v.   Harkrader,   29    Gratt. 


112. 

2  Jit-  Swift,  47  Cal.  429. 

8  Lefever  >:  Lefever,  6  Md.  472. 

4   I'i  Phila.  402. 

6  Nicholson's  Appeal,  20  Penn.  St. 
50. 

8  Dickerson  v.  Dickerson,  31  N.J. 
Eq  652. 

1  Chew's  Estate,  4  Md.  Oh.  60 J 
Cooper*(  (':i".  -'  Paige,  Ch.  34.  See 
Lord  Thnrlow,  in  Smith  v.  Bates,  '2 
Dick  631. 

M  Stone  r.  Dorrett,  18  Tex.  700. 

504 


9  Morgan  v.  Anderson,  5  Blackf. 
503;  West  v.  Forsythe,  34  Ind  418. 

10  Ex  parte  Crutchfield,  3  Yerg.  336. 

11  Windsor  v.  McAtee,  2  Met.  (Ky.) 
430. 

12  Slattery  v.  Smiley,  25  Md.  389. 

13  Perkins  v.  Finnegan,  105  Mass. 
501.  Where  dereliction  of  duty  as  to 
the  person  of  the  ward  is  charged,  and 
not  mismanagement  of  the  estate,  this 
is  insufficient  as  to  guardianship  of  es- 
tate.    GG  Cal.  240. 

14  Gray  v.  Parke,  155  Mass.  433. 


CHAP.  III.]  TERMINATION  OF  GUARDIAN'S  AUTHORITY.    §  317 

cause  for  a  guardian's  removal,  if  no  harsh  or  unfair  means 
have  been  used  to  erase  the  impressions  left  by  the  parents  on 
the  child's  mind.1  English  cases  sometimes  present  such 
conflicts  over  religious  influence.2 

§  317.  The  Same  Subject. — For  the  same  reason  that  non- 
residents are  held  incompetent  for  appointment,  guardians  must 
surrender  their  authority  when  they  move  out  of  the  jurisdic- 
tion, or  the  court  will  take  it  from  them.  This  rule  is  not 
uniform,  however,  in  all  the  States.  Under  the  statutes  now, 
as  formerly,  in  Indiana,  Alabama,  and  some  other  States,  re- 
moval from  the  State  constitutes  per  se  a  ground  for  displace- 
ment from  office.3  But  siuce,  as  we  have  seen,  non-residents 
may  sometimes  be  appointed  guardians  on  filing  security,  the 
more  reasonable  rule  is  to  make  them  liable  to  displacement 
whenever,  as  non-residents,  they  could  not  have  been  appointed 
in  the  first  instance.4  Eemoval  from  the  jurisdiction  with  the 
ward's  funds  may  justify  summary  proceedings;5  and  so  may 
allowing  the  wards  to  go  into  another  State  by  themselves  and 
neglecting  their  interests.6 

As  in  making  appointments,  the  court  is  allowed  a  liberal 
discretion  over  removals,  and  its  decision  will  not  be  reversed 
on  appeal  unless  palpable  injustice  has  been  done.7  But  the 
guardian  is  entitled  to  notice  before  removal,  that  he  may 
appear  in  defence ;  and,  if  removed  without  such  notice,  unless 
he  has  waived  it  by  his  voluntary  appearance  in  court,  he  has 
good  ground  for  appeal ;  and  it  is  doubtful  whether  a  new  ap- 
pointment under  such  circumstances  has  any  validity  whatever.8 

1  Nicholson's  Appeal,  20  Penn.  St.  guardian  is  appointed  in  the  comity 
50;  supra,  §  306.  of  the   late  father's  domicile,  removes 

2  McGrath  Re,  [1892]  2  Ch.  496.  with  them  into  another  county,  another 

3  Nettleton  v.  State,  13  Ind.  159;  guardian  may  be  there  appointed  for 
Cockrell  v.  Cockrell,  36  Ala.  673.  them  who  will   supersede  the  former. 

4  See  Speight  v.  Knight,  11  Ala.  461  ;  Moses  v.  Faber,  81  Ala.  445. 

also  supra,  §  306  ;  Succession  of  Book-  6  Watt  v.  Allgood,  62  Miss.  38. 

ter,  18  La.  Ann.  157.     Going  into  the  7  Nicholson's  Appeal,  20  Penn.  St 

Confederate  lines  during  the  war  did  50;    Isaacs    v.   Taylor,   3   Dana,    600; 

not  forfeit  tutorship.    Clement  v.  Sigur,  Young  v.  Young,  5  Ind.  513. 
29  La.  Ann.  798.  8  Hart  v.  Gray,  3  Sumn.  339 ;  Gwin 

5  State  v.  Engelke,  6  Mo.  App.  356.  v.  Yanzant,  7  Yerg.  143  ;  Myers  v.  Pear- 
Under  Alabama  Code,  if  the  surviving  soil,  17  Ind.  405;  Croft  v.  Terrell,  15 
mother  of  minor  children  for  whom  a  Ala.   652.     An  order  of    removal  for 

505 


§  317  a  THE  DOMESTIC   RELATIONS.  [PART   IV. 

The  authorities  are  clear  in  requiring  notice  wherever  proceed- 
ings for  removal  involve  the  guardian's  personal  character ; 
but  where  the  discharge  is  sought  on  other  grounds,  aud  the 
ward's  rights  are  deemed  of  paramount  importance,  as  when 
one  under  guardianship  for  insanity  is  restored  to  reason,  or  a 
ward  arrived  at  fourteen  wishes  to  exercise  the  privilege  of 
nominating  a  successor,  removals  without  notice  are  sometimes 
sustained  ; 1  still  the  better  opinion  is  in  favor  of  notice  in  all 
cases.2  And  the  judge  may  exercise  a  liberal  discretion  in  taking 
evidence  for  his  own  information.3 

§  317  a.  The  Same  Subject.  — We  have  seen  that  chancery 
courts  in  this  country  claim  the  right  of  removing  testamentary 
guardians.  In  England,  the  rule  is  not  laid  down  so  strongly. 
Testamentary  guardians  are  not  removed,  but  superseded  in 
their  functions :  a  refinement  adopted,  it  is  said,  out  of  defer- 
ence to  the  act  of  Parliament.4  In  this  sense  are  to  be  under- 
stood certain  expressions  of  Lord  Hardwicke  and  Lord  Redesdale, 
which  would  seem  to  extend  the  authority  of  the  court  to  actual 
removal  from  office.5  Lord  Nottingham,  in  Foster  v.  Denny,  said 
that  he  could  not  remove  a  guardian  constituted  by  act  of  Par- 
liament.6 This  is  still  the  doctrine  of  the  English  chancery  ; 
but  it  exercises  full  jurisdiction  in  ordering  infants  to  be  made 
wards  of  court,  with  suitable  directions  for  their  maintenance 
and  education  ;  and  it  will  restrain  the  testamentary  guardian 
from  interference  with  the  person  and  estate  of  wards  thus  taken 
under  its  protection.7 

By  the  common  law,  certain  persons,  as  idiots,  lunatics,  deaf 
and    dumb   persons,  persons  under    outlawry  or  attainder,  and 

embezzlement   ex    parte    and    without         8  He   may   consider  material    facts 

notice   is   void.      Colvin   v.    State,    127  bearing  upon  the  issue  at  the  date  of 

In1    103.     As  to  a  revocation  of  letters  the  hearing,  though  not  existing  when 

where   the  trust  has   never  been  fully  the  petition  was  filed.     155  Mass.  433. 

i,  or  the   appointment  was  il-         4  Macphers.  Inf  128. 
legal,  less  strictness  is  requisite.     See         6  Lord  Hardwicke,  in  Roach  v.  Gar* 

Scobey  v.  Gano,  35  Ohio  St.  550.  van,  1  Ves.  160;  Lord  Redesdale,  in 

1   llovey   v.   Harmon,  49   Me.   269;  O'Keefe  v.  Casey,  1  Sch.  &  Lef.  10(5. 
supra,  c.  2.  «  2  Ch.  Cas  237. 

-  Montgomery   v.   Smith,  3    Dana,         7  Smith  v.  Bate,  2  Dick.  631;  Ing- 

599;  Copp  r.  Copp,20  N.  II.  284;  !-<■<•  ham  v.  Bickerdike,  6  Madd.  275.     See 

v.  I'.,  22   [nd,  884.     Bnt  see  Cooke  v.  also  M'CuUochs,  In  re,  1  Dru.  276;  12 

Beale,  i  i  [red.  36.  Jur.  ioo. 
506 


CHAP.  III.]    TERMINATION  OF  GUARDIAN'S  AUTHORITY.    §  818 

lepers  removed  by  writ  of  leprosy,  were  passed  over  in  the  guar- 
dianship. And  where  a  guardian  became  incapable  of  acting, 
the  office  devolved  upon  the  next  person  to  whom  the  inherit- 
ance could  not  descend.1  Such  guardians  do  not  appear  to  have 
been  removed  from  office.  But  there  can  be  little  doubt  that 
the  insanity  of  a  probate  or  chancery  guardian  would  be  good 
cause  for  his  removal  or  supersedure  ;  and  a  final  settlement  of 
his  guardianship  accounts  would  properly  be  required  from  his 
own  guardian.2 

§  318.  Marriage  of  Female  Guardian. — The  marriage  of  a 
female  guardian  may  terminate  one's  authority,  though  that  of 
a  male  guardian  never  does.  The  old  rule  of  the  common  law 
appears  to  have  been,  that  when  a  female  guardian  in  socage 
married,  her  husband  became  guardian  in  right  of  his  wife ;  but 
that  on  her  death  guardianship  ceased  on  his  part,  and  went  to 
the  infant's  next  relation.3  Testamentary  guardianship  in  Eng- 
land seems  to  be  left  to  the  operation  of  the  will  in  such  cases : 
chancery  refusing  to  interfere  with  the  testator's  own  directions.4 
But  it  is  customary  for  the  father  to  designate  successors  in  the 
event  of  marriage.  What  has  already  been  said  on  the  subject 
of  appointing  married  women  guardians  applies,  likewise,  in  this 
connection.5  Certainly,  if  marriage  does  not  absolutely  put  an 
end  to  the  guardian's  authority,  it  has  the  common-law  effect  of 
joining  her  husband  in  the  trust ; 6  and  yet,  according  to  some 
American  statutes,  the  fact  of  marriage  would  only  render  her 


1  Co.  Litt.  88,  89;  Macphers.  Inf. 
24,  25. 

2  Modawell  v.  Holmes,  40  Ala.  391 ; 
Damarell  v.  Walker,  2  Redf.  198. 

3  Co.  Litt.  89  a ;  Bac.  Abr.  Guardian 
&Ward(E).     See  7  Vt.  372. 

4  Macphers.  Inf.  129;  Morgan  v. 
Dillon,  9  Mod.  135;  Dillon  v.  Lady 
Mount  Cashell,  4  Bro.  P.  C  306.  See 
Corbet  v.  Tottenham,  1  Ball  &  B.  59. 

6  See  supra,  §  306  ;  Martin  v.  Foster, 
38  Ala.  688;  Elgin's  Case,  1  Tuck. 
(N.  Y.  Surr.)  97;  Leavel  v.  Bettis,  .3 
Bush,  74. 

6  Wood  v.  Stafford,  50  Miss.  370; 
supra,  §  86.     Statutes  in  some  States 


change  the  old  rule,  and  expressly  au- 
thorize a  married  woman  to  be  guar- 
dian. Schouler,  Hus.  &  Wife,  appendix. 
As  to  requiring  in  such  case  the  hus- 
band's written  consent  to  the  wife's  con- 
tinuance in  office,  see  Hardin  v.  Helton, 
50  Ind.  319.  In  Xew  York  semble  the 
widowed  mother's  remarriage  termi- 
nates her  guardianship,  and  under  the 
statute  she  can  be  removed.  Swartwout 
v.  Swartwout,  2  Redf.  52.  The  female 
guardian  who  marries  must  not  abandon 
her  rights  of  custody ;  her  marriage 
does  not,  in  Kentucky,  extinguish  her 
authority.  Cotton  v.  Wolf,  14  Bush, 
238. 

507 


§319 


THE   DOMESTIC    RELATIONS. 


[PART  IV. 


liable  to  removal,  and  the  courts  would  protect  such  guardian's 
hona  fide  acts  against  collateral  attack.1  In  Louisiana,  the 
mother,  by  the  advice  of  a  family  meeting  previous  to  her  re- 
marriage, may  be  retained  in  the  tutorship  of  her  minor  chil- 
dren, notwithstanding  her  remarriage  ; 2  but  if  she  fails  to  procure 
such  advice,  she  loses  the  tutorship.3 

§  319.  Other  Cases  where  a  New  Guardian  is  appointed.  — 
There  are  some  other  cases  in  which  it  is  said  that  a  new  guar- 
dian may  be  appointed,  as  though  guardianship  had  already 
determined.  Thus,  where  a  testamentary  guardian  has  not 
acted,  and  declines  to  act,  chancery  may  appoint  a  successor.4 
So  in  other  cases  where  the  guardian  renounces  his  appoint- 
ment.5 Filing  a  bond,  with  proper  security,  is  sometimes  re- 
garded as  the  condition  precedent  to  a  probate  appointment, 
and  it  is  thought  that  letters  need  not  be  revoked  in  such  a 
case.  But  this  is  by  no  means  a  settled  rule.6  Letters  of  guar- 
dianship obtained  through  material  false  representations  may  be 
revoked.7 

Outlawry  and  attainder  of  treason  —  or  what  is  known  as 
civil  death  —  did  not  put  an  end  to  guardianship  in  socage; 
because,  it  was  said,  the  guardian  had  nothing  to  his  own  use, 
but  to  the  use  of  the  heir.8  The  same  principle  doubtless  ap- 
plies to  other  guardians.  But  a  guardian  might  be  properly 
removed  on  such  grounds.  In  the  United  States,  local  statutes 
largely  regulate  the  general  subject  of  terminating  a  guardian's 
authority. 


i  See  Hood  v.  Perry,  73  Ga.  319; 
§  326  ;  54  Ark.  480. 

2  Gaudet  v.  Gaudet,  14  La.  Ann. 
112. 

3  Keene  v.  Guier,  27  La.  Ann.  232. 

4  Ex  parte  Ohampney,  1  Dick.  350; 
( I'Keefe  v.  Gasey,  1  Sch.  &  Lef.  106. 

8  McAlister  v.  Olmstead,  1  Humph. 
210;  Lefever  v.  Lefever,  6  Md.  472; 
Simpson  v.  Gonzalez,  15  Fla.  9. 

508 


6  Russell  v.  Goffin,  8  Pick.  143;  Fay 
v.  Hard,  lb.  528  ;  Barns  v.  Branch,  3 
McCord,  19;  Clarke  v.  Darnell,  8  Gill 
&  Johns.  111.  See  West  v.  Forsythe. 
34  Ind.  418;  Fant  v.  McGowan,  57 
Miss.  779. 

*  lie  Clement,  25  N.  J.  Eq.  508.  The 
Orphans'  Court  may  thus  revoke.     lb. 

8  Co.  Litt.  88  b ;  Macphers.  Inf.  25 


CHAP.  IV.]  NATURE   OF   GUARDIAN'S  OFFICE.  §  820 


CHAPTER  IV. 

NATURE   OF  THE   GUARDIAN'S   OFFICE. 

§  320.  Guardianship  relates  to  Person  and  Estate.  — ■  The 
powers  and  duties  of  a  guardian  relate  either  to  the  person  of 
the  ward,  or  to  the  ward's  estate,  or  to  both  person  and  estate. 
As  guardian  of  the  person,  he  is  entitled  to  the  custody  of  the 
ward;  he  is  bound  to  maintain  him  in  a  style  suitable  to  the 
latter's  means  and  condition  in  life ;  if  the  ward  be  a  minor,  he 
superintends  his  education  and  directs  him  in  the  choice  of  a 
pursuit;  and  in  general,  he  supplies  the  place  of  a  judicious 
parent.  As  guardian  of  the  estate,  he  manages  the  ward's  prop- 
erty, both  real  and  personal,  with  faithfulness  and  care,  changes 
investments  whenever  necessary,  with  permission  of  the  court, 
pays  the  just  debts  of  the  ward,  collects  his  dues,  puts  out  his 
money  on  interest,  manages  his  investments,  keeps  regular 
accounts,  and  is,  in  effect,  the  ward's  trustee.1  Whether  the 
guardianship  be  in  socage,  testamentary,  or  by  chancery  or  pro- 
bate appointment,  these  powers  and  duties  are  essentially  the 
same ;  although,  as  we  have  seen,  socage  guardianship  was  cre- 
ated with  special  reference  to  the  ward's  real  estate.2  More- 
over, as  will  fully  appear  in  the  succeeding  chapters,  chancery 
and  probate  guardians  are  brought  more  closely  under  judicial 
control  and  supervision  than  either  guardians  in  socage  or 
testamentary  guardians. 

But  while  guardianship  of  the  person  resembles  the  relation 
of  parent  and  child,  it  is  not  altogether  like  it.  The  parent 
must  support  his  child  from  his  own  means ;  and  in  return  the 
child's  labor  and  services  belong  to  him.  But  the  guardian  is 
not  bound  to  supply  the  wants  of  his  ward,  except  from  the 
ward's  own  estate  in  his  hands  and  the  liberality  of  others, 
though  it  were  to  keep  the  child  from  starving.     On  the  other 

l  2  Kent,  Com.  230-233.  2  Supra,  c.  1. 

509 


§  320  THE   DOMESTIC    RELATIONS.  [PART  IV. 

hand,  the  guardian  has  no  more  right  to  the  labor  and  services 
of  his  ward  than  any  stranger.  Nor  are  guardians  of  the  estate 
vested  with  an  interest  precisely  like  that  of  trustees  ;  for  while 
the  latter  may  sue  and  be  sued  in  their  official  capacity,  suits  by 
and  against  infants  are  brought  in  the  name  of  the  ward  and  not 
the  guardian.1 

Guardians  in  socage  acquired  authority  as  guardians  of  the 
ward's  estate  ;  and  guardianship  of  the  estate  drew  after  it,  in 
such  case,  guardianship  of  the  person  ;  so  that  they  were  guar- 
dians of  both  person  and  estate.2  Testamentary  guardians  un- 
der the  statute  of  Charles  II.  acquire  authority  through  the 
father's  devise  to  them  of  the  "  custody  and  tuition  "  of  his 
children  ;  and  this  devise  of  the  person  carries  with  it,  as  inci- 
dent, a  devise  of  the  estate ;  so  that  they  too  (subject  to  statute 
modifications)  are  guardians  of  both  person  and  estate.3  But 
chancery  guardians  are  not  always  invested  with  such  powers ; 
for  the  court  will  make  such  orders  as  are  needful  in  all  cases. 
Chancery  sometimes  appoints  a  guardian  of  the  person  only,  for 
a  special  and  temporary  purpose.4  Where  a  suit  is  pending, 
and  it  becomes  necessary  to  appoint  a  guardian,  chancery  ap- 
points a  guardian  of  the  person  only,  the  estate  being  under  the 
direction  of  the  court.  But  where  no  suit  is  pending,  and  pro- 
ceedings are  commenced  by  petition,  the  guardian  is  appointed 
for  both  person  and  estate.5  Probate  guardianship  is  subject, 
in  ^reat  part,  to  local  legislation ;  but  it  may  be  safely  asserted, 
as  a  general  principle,  that  all  probate  guardians  are  guardians 
of  both  person  and  estate,  save  so  far  as  a  natural  guardian's 
rights  over  the  person  are  reserved  by  express  statute  or  other- 
wise, and  that  the  court  cannot  commit  guardianship  of  the 
person  to  one  and  guardianship  of  the  property  to  another.6 

The  guardian  is  not  always  entitled  to  the  custody  of  the  in- 

i  See  infra,  Part  V.  c.  6.  5  Macphers.  Inf.  105;  2  Kent,  Com. 

2  Bui     see     Bedell     v.    Constable,  229. 
Vaugh    L85  ,;  See  Tenbrook  »  M'Colm,  7  Ilalst. 

12   <':ir.   II.  c.  24,  §§  8,  9,  97.     But    some   State  codes   permit  a 

Vair'ti.  L78.  separation  of  the  functions  with  sepa- 

1  Macphers.   Inf.  114;  Ex  parte  Be-  rate  guardians  accordingly.    84  Iowa, 

.  Bro  I    C   556;  Ex  parte  Wools-  3G2.    And  see  17  K.  I.  760. 
i  ,  i  Madd.  213. 

510 


CHAP.  IV. J        NATURE   OF   GUARDIAN'S   OFFICE.  §  321 

fant's  person ;  but  chancery  will  exercise  its  discretion  fur  the 
benefit  of  the  latter,  as  to  delivering  him  up  to  the  guardian  or 
permitting  him  to  remain  elsewhere,  and.  as  to  the  persons  who 
are  to  have  access  to  him,  and  the  circumstances  attending  such 
access,  and  generally  as  to  his  education.1  And  it  is  the  policy 
of  our  legislation  to  leave  the  child's  person  in  his  parents'  keep- 
ing so  far  as  possible.  But  the  guardian  may  be  a  "  guardian  of 
the  person  and  estate"  notwithstanding. 

§  321.  Whether  a  Guardian  is  a  Trustee.  —  In  discussing  the 
rights  and  duties  of  a  guardian,  this  question  next  meets  us  at 
the  outset :  Is  or  is  not  the  guardian's  office  substantially  that 
of  a  trustee  in  interest  ?  This  will  be  best  seen  by  examining 
the  different  kinds  of  guardians,  as  they  respectively  arose. 

Guardianship  in  socage  arose  very  early  at  common  law,  and 
is  the  first  in  order.  These  guardians  were  considered  as  trus- 
tees. According  to  the  old  authorities,  the  guardian  in  socage 
had  not  a  bare  authority,  but  an  actual  estate  and  interest  in 
the  land,  though  not  to  his  own  use.2  Hence  he  might  elect 
whether  to  let  the  estate  or  occupy  it  for  the  ward's  benefit.  He 
was  considered  as  entitled  to  the  possession  of  the  ward's  prop- 
erty, and  incapable  of  being  removed  from  it  by  any  person.  In 
other  words,  this  guardian  had  the  legal,  but  not  the  beneficial 
interest.  Not  long  after  the  statute  of  Charles  II.  chancery  was 
called  upon  to  determine  the  nature  of  testamentary  guardian- 
ship. Lord  Macclesfield,  in  the  case  of  Duke  of  Beaufort  v.  Berty,3 
stated  that  testamentary  guardians  were  but  trustees ;  that  the 
statute  merely  empowered  the  father  to  appoint  a  different  per- 
son as  guardian  and  to  continue  the  relation  beyond  the  age  of 
fourteen,  and  until  the  ward  became  twenty-one ;  and  that  both 
socage  and  testamentary  guardians  were  equally  trustees.  And 
in  the  important  case  of  Eyre  v.  Countess  of  Shaftesbury?  this 
principle,  though  with  another  admitted  difference  as  to  succes- 
sion, was  again  affirmed.  This  general  rule  has  received  judicial 
sanction  in  England  much  more  recently.5 

1  Macphers.  Inf.  119  ;  Anon.  2  Ves.         3  1  P.  Wms.  703. 
Sen.  374.  4  2  P.  Wms.  102. 

2  Co.  Litt.  90  a;  Plowd.  c.  23.  See  5  Gilbert  v.  Schwenck,  14  M.  &  W. 
next  chapter.  488;  s.  c.  9  Jur.  693. 

611 


§  322  THE   DOMESTIC   RELATIONS.  [PART  IV. 

Chancery  guardianship,  of  still  later  origin,  resembles  in  its 
nature  testamentary  guardianship.  The  same  principles  are 
constantly  asserted  in  regard  to  both.  In  either  case,  the 
guardian  has  a  vested  interest  in  his  ward's  estate,  may  bring 
actions  relative  thereto,  and  make  leases  during  the  minority  of 
the  infant.  He  has  in  all  respects  the  dominion  pro  tempore  of 
the  infant's  estate,  and  possesses  more  than  a  naked  authority.1 
The  same  may  be  said  of  probate  guardianship  in  this  country, 
which,  under  statute  modifications,  has  become,  if  anything, 
more  like  trusteeship  than  the  other  kinds.2  And  in  Thompson 
v.  Boardman  3  the  analogies  of  the  old  law  have  been  extended 
to  the  case  of  a  spendthrift's  guardian. 

It  is  often  difficult  to  say  what  in  strictness  is  a  trustee, 
since  every  trust  is  limited  by  the  instrument  which  creates  it. 
The  powers  of  a  guardian  differ  greatly  from  those  of  an  execu- 
tor or  administrator.  But  so  far  as  guardianship  of  the  estate 
is  concerned,  a  guardian  is  in  fact  a  trustee  ;  for  he  holds  the 
legal  estate  for  the  benefit  of  another.4  To  apply  the  term 
"agent"  to  the  guardian's  office  seems  therefore  harsh  and 
unnatural,  whatever  may  be  the  ward's  position.5 

§  322.  Joint  Guardians. — Where  there  are  two  or  more  tes- 
tamentary guardians,  and  one  of  them  dies  or  is  removed,  the 
survivor  or  survivors  shall  continue.  The  very  nature  of  the 
trust  demands  it.6  In  England,  it  is  otherwise  with  joint 
guardians  by  chancery  appointment ;  for  if  one  dies,  the  office 
determines.7  But  the  survivors  will  be  appointed  without  a 
reference,8  so  that  after  all  the  rule  is   only  formal.     In  this 

1  People  v.  Byron,  3  Johns.  Cas.  53.  116,  that  guardians  of  minor  spend- 

2  See  Truss  v.  Old,  6  Rand.  55G ;  thrifts  or  insane  persons  have  only 
[saacs  v.  Taylor,  3  Dana,  600;  Alex-  a  naked  power  not  coupled  with  an 
ander  v.  Alexander,  8   Ala.  796  ;  Pep-  interest. 

per  v.   Stone,   10  Vt.  427;    Lincoln  v.  As   the   rights   and   duties   of   such 

Alexander,  52  Cal.  482.  guardians,  probate  guardians  included, 

a  ]  Vt.  .'57o.  depend   so  greatly  upon  local  statutes, 

4  See  Wall   v.  Stanwick,  34  Ch.  D.  local  jurisdictions  may  he  found  to  dif- 

765,  citing    with    approval    Mathew  v.  fer  as  to  the  nature  of  the  guardian's 

Brise   i  i  Bear.  341.  office,  which,  after  all,  is  8ui generis. 

i  Bui   see  dictum  of  Shaw,  C.  J.,  in         c  Sec  Bac.  Abu  Guardian  (A). 
Man  on  v.  Felton,  13  Pick.  206;  Mullet         7  Bradshaw  v.  Bradshaw,   1   Russ. 

i>,  Benner,  69   01.108.     And  Soule,  J.,  -r>-'*. 

in  Rollins  v.  Marsh,  128  Mass.         '   Ball  v.  Jones,  2  Sim.  41. 

512 


CHAP.  IV.]        NATURE  OF   GUARDIAN'S   OFFICE.  §  322 

country  the  more  reasonable  doctrine  prevails,  as  to  both  chan- 
cery and  probate  guardianship,  that  the  survivors  shall  continue 
the  trust,  like  co-executors,  and  on  the  same  principle.  This 
was  declared  to  be  the  rule  as  to  joint  chancery  guardians  in  a 
leading  New  York  case.1  And  a  Vermont  court  applies  it  like- 
wise to  probate  guardians.2  The  statutes  enacted  in  many  of 
the  States  remove  all  further  doubt  on  the  subject. 

Of  two  or  more  persons  appointed  joint  guardians  under  a 
will,  one  may  qualify  without  the  other;3  and  where  one  de- 
clines to  act,  all  the  rights  and  powers  created  by  the  appoint- 
ment under  the  will  may  devolve  upon  the  other.4  But  while 
a  joint  guardian  who  had  once  declined  the  trust  has  no  further 
right  to  be  appointed,  he  may  yet  be  selected  in  preference  to 
others  to  fill  a  vacancy.  Thus  it  has  been  held  that  where 
three  testamentary  guardians,  one  of  whom  was  the  mother, 
were  named  by  the  father  in  his  will,  and  the  mother  became 
sole  guardian  by  the  refusal  of  the  others  to  act  with  her,  they 
were  properly  selected  by  the  court,  after  the  mother's  death> 
on  their  own  application,  in  preference  to  the  person  nominated 
in  her  will.5 

On  the  principle  that  guardians  are  trustees,  it  is  held  that 
joint  guardians  may  sue  together  on  account  of  any  joint  trans- 
action founded  on  their  relation  to  the  ward,  even  after  the 
relation  ceases.6  Also  that  the  receipt  of  one  is  the  receipt  of 
all.7  Also  that  one  can  maintain  trespass  against  the  other  for 
forcibly  removing  the  child  against  his  wishes  ;  as  one  of  two 
joint  trustees  cannot  act  in  defiance  of  the  other.8  And  where 
one  guardian  consents  to  his  co-guardian's  misapplication  of 
funds,  he  is  liable.9  The  fact  that  one  joint  guardian  is  dead 
will  not  prevent  the  co-guardian's  prior  accounts  from  being 
opened  on  a  final  settlement  in  court.10     Guardians,  like  other 

1  People  v.  Byron,  3  Johns.  Cas.  5  Johnston's  Case,  2  Jones  &  Lat. 
53.  222. 

2  Pepper  v.  Stone,  10  Vt.  427.     See  6  Shearman  v.  Akins,  4  Tick.  283. 
also  remarks  of  Chancellor  Sanfonl,  in  7  Alston  v.  Munford,  1  Brock.  266. 
Kirby  v.  Turner,  Hopk.  309,  as  to  the  8  Gilbert  v.  Sclnvenck,  14  M.  &.  W. 
nature  of  joint  guardianship.  488. 

3  Kevan  v  Waller,  11  Leigh,  414.  9  Pirn  ?•.  Downing,  11  S.  &  R.  66. 
*  Matter  of  Reynolds,  18  N.  Y  Supr.     See  Clark's  Appeal,  18  Penn.  St.  175. 

41.  ao  Blake  v.  Pegratn,  101  Mass.  592. 

33  513 


§  323  THE   DOMESTIC    RELATIONS.  [PART    IV. 

trustees,  —  executors  and  admiuistrators  excepted,  —  may  por- 
tion out  the  management  of  the  property  to  suit  their  respective 
tastes  and  qualifications,  while  neither  parts  irrevocably  with 
the  control  of  the  whole  ;  and  in  such  case  each  is  chargeable 
with  no  more  than  what  he  received,  unless  unwarrantable  neg- 
ligence in  superintending  the  other's  acts  can  be  shown.1  And 
the  discharge  of  one  who  has  received  no  part  of  the  estate 
relieves  him  from  liability.2  On  the  other  hand,  it  is  presumed 
that  the  survivor  of  joint  guardians  received  the  whole  estate, 
in  absence  of  proof  to  the  contrary.3 

§  323.  Judicial  Control  of  the  Ward's  Property.  —  In  English 
practice,  the  court  of  chancery  holds  the  ward's  property  within 
its  grasp  with  a  tightness  unknown  to  American  tribunals. 
The  regular  course  is  to  get  in  all  the  money  due  the  infant, 
and  to  invest  it  in  the  public  funds.  A  receiver  is,  if  neces- 
sary, appointed  to  facilitate  collections,  and  generally  the  same 
person  is  made  a  permanent  receiver  of  the  ward's  real  estate, 
to  collect  all  rents.  Where  there  is  an  executor  he  will  not  be 
interfered  with,  except  under  strong  circumstances  of  suspicion, 
but  an  administrator  is  treated  with  less  consideration.4  Even 
executors  who  are  also  testamentary  guardians  must  bring  their 
funds  into  court  after  settling  up  the  estate  of  their  testator.5 
Chancery,  thus  managing  actively  the  ward's  property,-  makes 
its  own  scheme  for  maintenance,  and  allows  the  guardian  a 
certain  fixed  income  accordingly.6 

Probate  guardianship  in  this  country  is  quite  different. 
Schemes  of  maintenance  are  seldom  heard  of.  Nor  are  re- 
ceivers appointed.  The  guardian  usually  collects  his  ward's 
dues,  whether  from  the  executor  of  the  parent  or  others,  and 
manages  the  property  on  his  own  responsibility,  with  little 
judicial  interference.  He  regulates  at  discretion  the  sum  proper 
for  annual  expenditure,  and  changes  the  rate  when  expedient. 
Of  course  he  is  held  accountable,  on  legal  principles,  much  the 


i  Jones's  Appeal,  8  Watts  &  S.  143.  4  Macphers.  Inf.  208,  and  cases  cited. 

'-'  Hocker  <•.   Woods,  ••!•'{   Penn.   St.  r>  Macphers.    Inf.    118;    Blake    v. 

400.  Blake,  2  Sell.  &  Lei.  26. 

rahara   <•.   Davidson,   2    1  )ev.   &  6  Macphers.  Inf.  218  et  seg. 
Bat.  Eq.  155. 

514 


CHAP.  IV.]         NATURE   OF   GUARDIAN'S    OFFICE.  §  324 

same  as  those  of  the  English  chancery;  but  he  seldom  applies 
to  the  court  for  directions,  unless  some  perplexity  arises,  or  it 
becomes  expedient  to  sell  real  estate,  or  when  the  ward  cannot 
be  supported  without  breaking  in  upon  the  principal  fund. 

§  324.  Guardianship  and  other  Trusts  Blended.  —  The  same 
person  is  frequently  executor  under  the  parent's  will  and  also 
guardian  of  the  minor  children.  Hence  the  question  will  some- 
times arise  whether  he  holds  the  fund  in  the  one  or  the  other 
capacity.  It  is  clear  that  where  one  is  both  guardian  and  exec- 
utor, he  cannot  be  sued  in  both  capacities ;  nor  are  both  sets  of 
sureties  liable.1  He  is  in  the  first  instance  liable  as  executor ; 
and  in  general,  to  render  him  liable  as  guardian,  there  should 
be  some  distinct  act  of  transfer.  His  plain  duty  is  to  keep  the 
trusts  distinct  and  not  blend  them.  In  the  former  case,  his 
accounts  rendered  will  show  the  transfer  of  the  legacy  or  dis- 
tributive share  from  his  account  as  executor  to  his  account  as 
guardian ;  and  thereby  his  liability  as  guardian  will  become 
fixed.2  But  in  the  latter  case,  or  if 'no  clear  evidence  appears 
elsewhere  of  an  actual  transfer,  can  it  be  presumed  ?  The  better 
opinion  is  that,  after  the  time  limited  by  law  for  the  settlement 
of  the  estate  has  elapsed,  and  there  is  no  evidence  of  intent  to 
hold  longer  as  executor,  he  shall  be  presumed  a  guardian  ;  on 
the  principle  that  what  the  law  enjoins  upon  him  to  do  shall  be 
considered  as  done.3  And  certainly  very  slight  evidence  would 
confirm  any  possible  doubt ;  such  as  the  division  of  the  parent's 
estate  among  other  heirs,  the  payment  of  legacies,  or  where  he 
has  placed  some  of  the  chattels  on  the  ward's  farm,4  or  has 
charged  himself  in  the  new  capacity,  crediting  himself  in  the 
former  one.5  But  the  rule  may  be  otherwise  with  joint  execu- 
tors or  administrators ; 6  and  we  need  hardly  add  that  this  doc- 

1  Wren  v.  Gayden,  1  How.  (Miss.)  v.  Crosby,  1  S.  C.  K.  s.  337  ;  Wilson  v. 
365.  Wilson,  17  Ohio  St.  150;  Townsend  v. 

2  Alston  v.  Munford,  1  Brock.    266;  Tallant,  33  Cal.  45;  Re  Wood,  71    Mo. 
Burton  v.  Tunnell,  4    Harring.   (Del.)  623 ;  Weaver  v.  Thornton,  63  Ga.  655. 
424,   contra,   Conkey   v.  Dickinson,   13  4  Johnson    v.  Johnson,  2    Hill,   Ch. 
Met.  51;  Stillman  v.  Young,  16  111.  318;  277;  Drane  v.  Bayliss,  1  Humph.  174. 
Foteaux   v.  Lepage,   6   Clarke   (Iowa),  5  Adams   v.   Cleaves,    10    Lea,  367. 
123  ;  Scott's  Case,  36  Vt.  297.  And  see  Thurston  >■.  Sinclair,  79  Va.  101. 

8  Watkins  v.  State,  4  Gill  &  Johns.  *  Watkins  v.  State,  4  Gill  &  Johns. 

220;  Karr  v.  Karr,  6  Dana,  3;  Crosby     220;  Coleman  v.  Smith,  14  S.  C.  511. 

515 


§  32-1  THE   DOMESTIC   RELATIONS.  [PART  IV. 

trine  applies  in  strictness  only  to  personal  assets  which  pass 
through  administration  ;  since  real  estate,  ordinarily,  goes  at 
once  to  the  heir.  Acts,  too,  inconsistent  with  the  purpose  of 
holding  as  guardian,  and  consistent  with  that  of  continuing 
administrator  or  executor,  should  not  readily  be  construed  to 
a  ward's  prejudice  ;  but  rather,  if  need  be,  serve  to  repel  the 
presumption  of  guardianship,  and  in  any  event  to  aid  the  bene- 
ficiary who  seeks  redress.1 

If  a  legacy  is  given  under  a  will  to  an  infant,  which  he  is 
not  to  receive  unless  he  attain  full  age,  it  would  appear  that 
the  simpler  course  is  for  the  executor  to  retain  the  fund  during 
the  infant's  minority ;  yet  it  is  held  that  a  probate  guardian 
may,  at  the  court's  discretion,  be  appointed  to  receive  the  fund 
and  hold  it  subject  to  the  restriction  contained  in  the  will.2  If 
a  guardian  has  duly  qualified,  the  child's  legacy  or  distributive 
share  should  be  paid  over  to  the  guardian.  A  guardian  of  the 
estate  of  minors  may  contest  the  account  of  an  executor  or 
administrator  in  an  estate  where  his  wards  are  interested.3 

A  guardian  cannot  blend  distinct  trusts  of  guardianship  by 
appointment.  Thus,  where  a  person  was  appointed  guardian 
of  an  infant  who  became  insane  shortly  before  reaching  his 
majority,  and  the  same  guardian  continued  to  act,  styling  him- 
self guardian  of  "A.  B.,  an  idiot,"  it  was  held  that  his  trust 
properly  expired  with  the  infancy  of  the  minor.4  Nor  does  it 
matter  that  the  probate  court  recognizes  a  continuation  of  the 
trust  by  passing  his  accounts ;  for  an  actual  appointment,  after 
the  regular  form,  is  always  essential  to  a  guardian's  authority.5 
But  the  guardian  of  a  minor  has   sufficient   authority  to  act 


1   In  doubtful  cases  of  this  kind,  the  concerning  money  paid  under  rules  of 

modern  inclination  is  to  let  the  ward  the  U.  S.  Treasury,  see  Low  v.  Hanson, 

sin-   both   sets  of    sureties,    or    either,  72  Me.   104.     See  also  Landis  v.  Epp- 

leaving  them   to  adjust   their   equities  stein,  82  Mo.  99. 

among  themselves.    Harris  v.  Harrison,  3  Appointment    of    an    attorney   to 
7*   N.   C.  202.      And    sec    Coleman    r.  represent  the  minors    does  not   super- 
Smith,  14   S.  C.  511.     So,  too,  where  a  sede  the  guardian's   rights  in  this  re- 
gnardian  subsequently  becomes  trustee,  spect.    Rose's  Estate,  GG  Cal.  241. 
State   v.  Jones,   68  N.  C.  554;  Perry  v.  4  Coon  v.  Cook,  6  Ind.  2G8. 
Carmichael,  '.).r>  111.  519.  5  But  see  King  v.  Bell,  36  Ohio  St 

*  Gunther    >■.    State,    .31    Md.    21  ;  460. 
Moody  Re,  2  Dem.  624.    For  the  rule 

51G 


CHAP.  IV.]        NATURE   OF   GUARDIAN'S   OFFICE.  §  326 

during  the  ward's  minority,  whether  the  ward  be  of  sound  or 
unsound  mind ;  and  those  things  which  a  guardian  may  law- 
fully do  for  his  infant  ward  are  none  the  less  lawful  because  it 
turns  out  afterwards  that  the  ward  was  insane.1 

§  325.  Administration  durante  Minore  .State.  —  Where  the 
person  designated  as  executor  of  a  will  is  under  age,  it  becomes 
necessary  to  appoint  an  administrator  during  minority,  which 
appointment  was  at  common  law  denominated  durante  minore 
estate.2  So  when  the  next  of  kin  is  under  age,  the  English  prac- 
tice in  such  cases  is  to  appoint  the  infant's  guardian,  unless 
there  be  some  other  next  of  kin  competent  to  act ;  though  the 
rule  is  not  invariable.3  And  in  the  English  case  of  John  v. 
Bradbury,  decided  as  late  as  1866,  it  is  affirmed  that  the  guar- 
dian of  an  infant  sole  next  of  kin  shall  not  only  administer  in 
preference  to  creditors,  but  shall  be  exempted  from  security, 
except  in  very  strong  cases,  notwithstanding  the  creditors  re- 
quest it.4  So  he  is  preferred  to  the  husband  of  a  married 
woman  who  died  after  a  judicial  separation.5  But  in  this 
country,  while  there  are  statutes  in  some  States  favoring  similar 
doctrines,  in  others  the  court  has  full  discretion  in  selecting  a 
substitute  for  the  child.6  Such  administrator  has  for  the  time 
being  all  the  powers  of  a  general  administrator,  but  his  term  of 
office  is  restricted  to  the  infant's  minority.7 

§  326.  Quasi  Guardianship  where  no  Regular  Appointment.  — - 
A  quasi  guardianship  often  arises  at  law  where  there  has  been 
no  regular  appointment,  or  an  appointment  without  jurisdiction 
or  some  intermeddling ;  or  even  where  the  minor's  property  is 
purchased  by  one  confidentially  related  to  him.8  The  general 
principle  thus  recognized  is  that  any  person  who  takes  posses- 
sion of  an  infant's  property  takes  it  in  trust  for  the  infant. 
Hence  courts  of  equity  will  always  protect  the  helpless  in  such 

1  Francklyn  v.  Sprague,  121  U.  S.  &  D.  287.  But  the  husband  usually 
215.  administers.     See  supra,  §  196. 

2  1  Wms.  Ex'rs,  419,  420;  2  Redf.  6  1  Wms.  Ex'rs,  419;  Mass.  Gen. 
Wills,  92,  93.  Stats,  c.  94. 

3  lb.  1  1   Wms.    Ex'rs,   428,  and    notes; 

4  John  v.  Bradbury,  L.  R.  1  P.  &  D.  Schouler,  Executors,  §§  132,  135. 

245.  8  See    Hindinan    v.    O'Connor,    54 

6  Goods  of  Stephenson,  L.  R.  1  P.    Ark.  627. 

517 


§  328  THE   DOMESTIC    RELATIONS.  [PART   IV. 

cases  by  holding  the  person  who  acts  as  guardian  strictly  ac- 
countable. The  father  may  thus  be  a  quasi  guardian.1  So  may 
a  step-parent,2  or  a  step-grandparent,3  or  a  widowed  mother 
who  marries  again,4  or  one  whose  appointment  as  guardian 
was  irregular  or  null ; 5  but  not  an  executor  or  administrator 
in  rightful  possession  of  the  infant's  property,  for  he  holds  in  a 
different  capacity.6  A  son  who  takes  charge  of  an  incompetent 
father's  estate,  with  the  latter's  acquiescence,  may  make  his 
father  an  equitable  ward.7  Chancery  has  full  jurisdiction  over 
the  transactions  of  all  persons  standing  in  loco  parentis.8 

On  the  same  principle,  one  regularly  appointed  guardian  of 
an  infant  is  held  responsible  for  acts  committed  before  quali- 
fying as  such  by  giving  bonds.9  And  although  his  authority 
ceases  when  the  ward  attains  majority,  he  continues  person- 
ally responsible  so  long  as  his  possession  and  control  of  the 
property  continues.10 

§  327.  Conflict  of  Laws  as  to  Guardianship.  —  The  guardian's 
authority  is  limited  to  the  jurisdiction  which  appoints  him,  and 
does  not  extend  to  foreign  countries,  unless  permitted  by  foreign 
laws.  Every  nation  is  sovereign  within  its  own  borders,  but 
powerless  beyond  them.  The  rights  of  foreign  guardians  have 
been  to  some  extent  admitted,  however,  on  the  principle  of 
comity.11  These  rights  may  be  considered,  first,  as  to  the  person 
of  the  ward ;  second,  as  to  his  estate. 

§  328.  Conflict  as  to  Ward's  Person.  —  First,  as  to  the  ward's 
person.  Many  writers  on  public  law  claim  that  the  guardian's 
authority  extends  everywhere.     Others  again  deny  that  it  ex- 

1    1  Vnnington  v.  Fowler.  3  Halst.  Ch.  8  Espey  v.  Lake,  15  E.  L.  &  Eq.  579. 

843  ;  Alston  ,,.  Alston,  34  Ala.  15.  9  Magrnder  v.  Darnall,  G  Gill,  269. 

a  Espey  v.  Lake,  15  E.  L.&Eq.  579.  10  Mellish  v.  Mellish,  1   Sim.  &  Stu. 

8  54  Ark.  027.  138;  Armstrong  v.  Walkup,  12   Gratt. 

*  Wall  r.  Stanwick,  34  Ch.  I).  763.  608.     Whether  a  woman's  Utters  abate 

■  CrookB  v.  Turpin,  1  B.  Monr.  185;  or  not  on  her  marriage,  she  is  liable  if 

Earle  y.  Crura,  42  Miss.  165;  McClure  she  allows    her    husband   to  use    the 

V.   Commonwealth,    HO    Penn.  St.    167;  ward's    property.      Hood    v.    Terry,    73 

Stat.-  v.  Lewis,  73  N.  C.  138.  Ga.  319  ;  §  318. 

«   Bibb   v.  McKinley,  9    Port.   636;  «  See   Story,   Confl.   Laws,  §§  492- 

Minfee  v.  Ball,  '2  Eng.  520.  529.    Interference  by  English  appoint- 

'  Jacox  v.  Jacox,  40  Mich.  478.   See  menl   with  :i  French  guardianship  de- 

also   Munroe  v.   Phillips,    64    Ga.  32;  dined,  where  the  infant  lived  in  France. 

Sherman  v.  Wright,  v>  X.  Y.  227.  41  Ch.  1).  310. 
518 


CHAP.  IV.]         NATURE   OF   GUARDIAN'S   OFFICE.  §  329 

tends  beyond  the  jurisdiction  which  appoints.1  In  England, 
the  paternal  authority  is  recognized,  even  in  aliens;  but  if  an 
infant  has  a  guardian  appointed  by  any  other  authority  out  of 
the  jurisdiction,  the  appointment  fails  as  soon  as  the  infant 
comes  to  England,  and  the  court  of  chancery  will  thereupon 
appoint  a  guardian  on  petition.2  Yet  in  a  case  not  long  ago 
liberal  favor  was  shown  toward  the  foreign  guardian  of  wards 
domiciled  abroad.  He  had  sent  them  to  England  to  be  educated, 
and  wished  to  remove  them  to  their  own  country  in  order  to 
complete  their  education.  The  court  refused  to  interfere  with 
their  removal,  and  allowed  the  exclusive  custody  to  the  foreign 
guardian ;  at  the  same  time,  however,  refusing  to  discharge  an 
order  appointing  English  guardians.3 

In  this  country,  the  rights  and  powers  of  guardians  over  the 
ward's  person  are  considered  strictly  local,  even  as  between 
different  States,4  though  the  paternal  right  would  probably  be 
recognized  as  in  England.5  But  in  Massachusetts,  some  years 
ago,  the  custody  of  a  child  was  awarded  to  a  foreign  guardian, 
in  preference  to  one  appointed  within  the  jurisdiction;  the 
court  observing  that  while  the  former  had  no  absolute  right  to 
the  child,  his  office  would  be  deemed  an  important  element  in 
determining  to  whom  custody  should  be  given.6 

§  329.  Conflict  as  to  Ward's  Property.  —  Second,  as  to  the 
ward's  property.  A  distinction  has  been  made  between  mov- 
ables and  immovables.  As  to  immovable  property,  such  as  real 
estate,  it  is  almost  universally  admitted  that  the  law  rei  sitae 
shall  govern.7     But  writers  do  not  agree  as  to  movable  property, 

1  See  Story,  Confl.  Laws,  §§  495-497,  the  time  being  where  the  ward  bona 
and  authorities  cited.  fide  resides  in  the  jurisdiction,  though 

2  Macphers.  Inf.  577  ;  Ex  parteW&t-  not  perhaps  domiciled  there.  Supra, 
kins,  2  Ves.  470.  §  30.3.      Such   appointment    may    not 

3  Nugent  v.  Vetzera,  L.  R.  2  Eq.  clothe  the  guardian  with  extra  terri- 
704.     See  27  E.  L.  &  Eq.  451.  torial  authority,  yet  it  is  not  void. 

4  Story,  Confl.  Laws,  §  499  ;  Morrell  6  See  Townsend  v.  Kendall.  4  Minn. 
v.  Dickey,  1  Johns.  Ch.   153;  Kraft  v.  412. 

Wickey,  4  Gill  &  Johns.  332 ;  Burnet  6  Woodworth    v.   Spring,   4    Allen, 

v.  Burnet,   12  B.  Monr.  323;  Boyd  v.  321. 

Glass,  34  Ga.  253  ;  Whart.  Confl.  Laws,  7  Story,    Confl.    Laws,    §§    500-502. 

§§  2G1-264 ;  Rice's  Case,  42  Mich.  528.  And  see  post,  c   7.     As  between  West 

We  have  seen  that  the  courts  of  a  State  Virginia  and    Virginia,  see  Rinker   v. 

or  country   will   take    jurisdiction  for  Streit,  33  Gratt.  663. 

519 


§  829  THE   DOMESTIC   DELATIONS.  [PART   IV. 

such  as  goods  and  personal  chattels,  whether  the  law  of  the 
domicile  shall  prevail  over  that  of  the  situation.  Judge  Story 
considered  the  weight  of  foreign  authority  in  this  respect,  in 
favor  of  admitting  the  guardian's  rights  to  prevail  everywhere 
to  the  same  extent  as  they  are  acknowledged  by  the  law  of  the 
domicile.1  And  this  seems  to  be  the  Scotch  doctrine.2  But 
according  to  the  doctrine  of  the  common  law,  now  fully  estab- 
lished both  in  England  and  America,  the  rights  of  a  guardian 
over  all  property  whatsoever  are  strictly  territorial,  and  are 
recognized  as  having  no  influence  upon  such  property  in  other 
countries  where  different  systems  of  jurisprudence  are  estab- 
lished. No  foreign  guardian  can,  by  virtue  of  his  office,  exercise 
his  functions  in  another  country  or  State,  without  taking  out 
other  letters  of  guardianship  or  otherwise  conforming  to  the 
local  law  ;  while,  on  the  other  hand,  local  courts  consider  their 
own  authority  competent  within  the  jurisdiction,  if  the  ward's 
property  be  located  there.  Such  is  the  rule  in  both  countries.3 
And  hence  a  foreign  general  guardian  is  often  required  to  take 
out  ancillary  letters  in  the  courts  of  a  State  in  which  he  desires 
recognition.4 

But  the  rigor  of  this  rule  is  sometimes  abated.  In  England, 
personal  property  will,  under  certain  circumstances,  be  paid  to 
an  owner  who,  if  domiciled  and  resident  in  that  country,  would 
not  be  allowed  to  receive  it.5    So  administration  durante  minore 


1  Story,  Confl  Laws,  §  503 ;  Schooler,  jurisdiction  against  a  guardian  ap- 
Pers.  Prop.  347-385;  Wharton,  Confl.  pointed  iu  the  other  State  as  to  rents 
Laws.  £§  2(55,  266.  of  lands.     Munday  v.  Baldwin,  79  Ky. 

2  Story,  Confl.  Laws,  §  503 ;  Fraser,  121.  Before  permitting  an  infant's 
Parent  &  Child,  604.  property  to  he  transferred  beyond  the 

:!  Storv,  Confl.   Laws,  §504;  supra,  State  limits,  the  court  must  be  satisfied 

I;   Rice's  Case, 42  Mien. 528 ;  Wei-  that  the  guardian  has   been  regularly 

ler  v.   Snggett,  3   Redf.  249:  Hoyt  v.  appointed  according  to  the  laws  of  the 

Spragne,  103  U.  S.  Supr.  613;  Leonard  State  where  the  ward  resides,  that  the 

r.  Putnam,  51   X.  II.  247.     As  to  a  con-  guardian  is  fit  for  the  appointment,  and 

tract  by  a  person  under  guardianship,  that  sufficient  security  has  been  given. 

made  in  another  State  and  valid  there,  Cochran  v.    Fillans,   20    S.   C.  237.     A 

see   Gates  v.   Bingham,  49  Conn.  275.  guardian   properly   constituted   in   th» 

Where  an  infant,  domiciled  and  having  State  of  theward's  residence  is  favored. 

rdian   in  one  State,  is  taken  to  Watt  v.  Allgood,  62  Miss.  38. 

another  state   without    the  guardian's  4  Gunther  Be,  3  Dem.  386. 

it,  the  courts  of  the   former  Slate  6  Macphers.    Inf.     577;    Goods    of 

incline  bo  uphold  the  guardian  of  their  Countess  Da  Cunha,  l  Hag.  237. 

520 


CHAP.  IV.]         NATURE   OF   GUARDIAN'S   OFFICE. 


§329 


cetate  has  been  granted  to  a  foreign  guardian.1  In  this  country 
there  are  local  statutes  which  permit  non-resident  guardians 
to  sue  on  compliance  with  certain  formalities,  or  even  without 
them.2  But  otherwise  they  cannot  bring  actions  of  any  sort.3 
And  this  seems  to  be  the  English  rule  likewise.4  Nor  will  the 
courts  of  one  State  enforce  the  obligation  of  a  probate  guar- 
dian's official  bond  with  sureties  given  in  another  State.5  The 
question  whether  the  foreign  jurisdiction  has  conferred  similar 
privileges  upon  citizens  of  the  local  forum  carries  some  weight.6 
But  a  court  having  general  chancery  jurisdiction  over  matters 
of  guardianship  may,  it  appears,  in  the  exercise  of  sound  dis- 
cretion, and  upon  principles  of  comity,  equity,  and  justice,  order 
assets  of  the  ward  in  the  possession  of  a  guardian  resident 
within  its  jurisdiction  to  be  delivered  to  the  guardian  abroad.7 
While  courts  of  equity  will  permit  property  to  pass  to  the  for- 
eign guardian,  in  pursuance  of  law,  it  seems  that  they  will 
generally  exercise  discretion,  and  in  some  cases  require  good 
security,8  in  others,  direct  the  payment  of  a  regular  allowance,9 
and  in  others,  refuse  payment  altogether ; 10  the  welfare  of  the 
infant  being  always  considered  in  such  cases. 


1  Goods  of  Sartoris,  1  Curteis,  910. 

2  Ex  parte  Heard,  2  Hill  Ch.  54; 
Hines  v.  State,  10  S.  &  M.  529 ;  Sims  v. 
Renwick,  25  Geo.  58 ;  Grist  v.  Fore- 
hand, 36  Miss.  69 ;  Martin  v.  McDonald, 
14  B.  Monr.  544  ;  Carlisle  v.  Tuttle,  30 
Ala.  613  ;  Warren  v.  Hofer,  13  Ind.  167  ; 
Re  Fitch,  3  Redf.  457 ;  Shook  v.  State, 
53  Ind.  403. 

3  Morrell  v.  Dickey,  1  Johns.  Ch. 
153;  Kraft  v.  Wickey,  4  Gill  &  Johns- 
322;  Rogers  v.  McLean,  31  Barb.  304. 
This  is  the  rule,  too,  in  Louisiana.  Suc- 
cession of  Shaw,  18  La.  Ann.  265; 
Succession  of  Stephens,  19  La.  Ann. 
499.  But  as  to  instituting  proceedings 
to  call  the  resident  guardian  to  account, 
see  109  111.  294;  33  S.  C.  350. 

4  Story  considers  it  doubtful.  Beat- 
tie  ^.Johnston,  1  Phillips,  Ch.  17;  10 
CI.  &  Fin.  42  ;  contra,  Morrison's  Case, 
cited  in  4  T.  R.  140,  and  1  H.  Bl.  677,  682. 

5  Probate  Court  v.  Hibbard,  44  Vt. 
597. 


6  13  Phila.  385,  389.  The  authority 
of  a  guardian  of  a  non-resident  minor 
is  limited  usually  to  the  particular  local 
property  which  confers  a  jurisdiction. 

10  Fed.  R.  894.     See  Hart  v.  <  Izapski, 

11  Lea,  151.  But  in  accounting  for 
his  investments  a  non-resident  guar- 
dian should  not  lie  held  to  a  narrower 
range  of  securities  than  the  law  of 
the  ward's  domicile  allows.  Lamar  v. 
Micou,  114  U.  S.  218. 

7  Earl  r.  Dresser,  30  Ind.  11. 

8  Case  of  Andrews'  Heirs,  3  Humph. 
592;  Martin  v.  McDonald,  14  B.  Monr. 
544;  Re  Fitch,  3  Redf.  457. 

9  McNeely  v.  Jamison,  2  Jones,  Eq. 
186.  And  see  Ex  partt  Dawson,  3 
Bradf.  130;  M'Liskey  v.  Reid,  4  Bradf. 
334. 

10  See  2  Story,  Eq.  Juris,  §  1354  6; 
Stephens  v.  James,  1  M.&K.627.  Let- 
ters are  thus  granted  in  the  State 
having  property,  ancillary  to  the  guar- 
dianship   in    child's    doi   •Vile   or    resi- 

521 


§  330 


THE   DOMESTIC   RELATIONS.  [PART  IV. 


The  principles  applicable  to  non-resident  guardian?  in  this 
country  appear  in  many  respects  similar  to  those  in  case  of 
foreign  executors  and  administrators,  and  the  rules  we  have 
stated  might  be  subjected  to  modification  by  the  mutual  treaty 
stipulations  of  two  independent  governments.1  The  law  of 
domicile  controls  properly  as  to  the  ward's  capacity  and  the 
time  when  the  law  frees  him  from  the  disabilities  of  infancy.2 

§  330.  Constitutional  Questions  relating  to  Guardianship. — 
As  each  legislature  in  this  country  derives  its  authority  from 
a  written  constitution,  questions  sometimes  arise  in  our  courts 
as  to  the  validity  of  certain  statutes,  which  in  Great  Britain 
are  of  no  importance,  since  there  an  act  of  Parliament  is  the 
supreme  law.  Thus  it  is  not  uncommon  for  our  legislatures  to 
authorize  or  confirm  the  sale  of  lands  held  by  guardians  and 
other  trustees  by  special  statutes  ;  and  such  statutes  have  been 
attacked  either  as  an  interference  with  the  property  rights  of 
infants  and  their  heirs,  or  as  an  usurpation  of  judicial  func- 
tions.3 Such  acts  are,  however,  constitutional,  unless  expressly 
forbidden,  according  to  the  best  authorities,  where  at  least  the 
object  is  simply  to  provide  for  a  change  of  investment  for  the 
beneficiary,  and  not  to  divest  the  latter  of  property  rights.4 
But  in  a  New  Jersey  case  it  was  intimated  by  the  Chancellor 
that,  if  fraud  or  sinister  motives  on  the  guardian's  part  were 


dence.  Metcalf  v.  Lowther,  56  Ala. 
312;  .Marts  v.  Brown,  56  Iud.  386. 
As  to  the  right  of  foreign  guardian  to 
petition  for  appointment  of  guardian 
ad  litem  without  ancillary  letters,  see 
Freund  v.  Washburn,  17  Hun,  543; 
Shook  v.  State,  53  Ind.  403.  As  to 
a  foreign  guardian's  right  to  transfer 
Stock,  see  Ross  v.  Southwestern  R.,  53 
Ga.  51  l.  An  order  of  court  does  not 
authorize  a  foreign  guardian  beyond  its 
own  terms.  Williams  v.  I huican,  92  Ivy. 
1 25.  Sail  cannot  be  brought  in  a  federal 
court.  Morgan  v.  Totter  (1895)  U.  S. 
1  <  lommonwealth  v.  Rhoads,  37  Penn. 

And   see    Pratt   V.    Wright,    13 

(iratt.  175.    The  guardian  of  a  minor 

who  recei  es  property  of  his  ward  in  a 

ii  country  or  State  must,  account 

for  it,  unless  be  can  show  that  be  had 

522 


accouuted  for  it  abroad.  Secchi's  Es- 
tate, Myrick's  Prob.  225.  As  to  the 
proper  course  for  care  and  transfer  of 
the  ward's  money  when  a  ward  re- 
moves from  the  jurisdiction,  and  a  new 
guardian  is  appointed  in  the  State  of 
his  new  domicile,  see  Suavely  v.  Hark- 
rader,  29  Graft.  112. 

2  Woodward  v.  Woodward,  87  Term. 
644. 

8  See  Davison  v.  Johonnot,  7  Met, 
388,  for  a  full  discussion  of  the  question. 

4  Clarke  v.  Van  Surlay,  15  Wend. 
436  ;  Cochran  v.  Van  Surlay,  20  Wend. 
365;  Davison  v.  Johonnot,  7  Met.  388  ; 
Snow  hill  v.  Snowhill,  2  Green,  Ch.  20; 
Brenham  v.  Davidson,  51  Cal,  352; 
Iloyt  v.  Sprague,  103  1'.  S.  Supr.  613. 
But  see  opinion  of  .Justices,  cited  in  4 
N.  H.572;  Jones  v.  Perry,  10  Yerg.  59. 


CHAP.  V.]      RIGHTS   AND   DUTIES   OF   GUARDIANS.  §  331 

shown,  the  special  act  might  be  judicially  avoided.1  An  act  of 
the  legislature  may  authorize  a  certain  guardian  to  sell  the  real 
estate  of  his  infant  ward,  subject  to  the  approval  of  the  sale  by 
the  probate  court.2  It  is  held  that  the  legislature  may  enable 
a  foreign  guardian  to  sell  lands  within  the  State.3  So  a  general 
law  may  be  enacted  for  enabling  guardians  and  other  trustees 
to  enter  into  agreements  as  to  the  disposition  of  property  held 
by  them,  consistently  with  constitutional  provisions  which  pro- 
tect the  rights  of  individuals ;  notwithstanding  the  rights  of 
persons  remotely  interested  in  the  estate,  who  are  either  not 
in  existence  or  only  contingently  concerned,  may  be  thereby 
compromised  without  their  assent.4  Doubtless  the  wiser  policy 
of  the  legislature  is  to  refer  all  cases  of  this  kind  to  the  courts 
under  general  laws ;  and  thus  do  some  State  constitutions 
expressly  require.5 


CHAPTER   V. 


RIGHTS   AND   DUTIES    OF   GUARDIANS   CONCERNING   THE 
ward's  PERSON. 

§  331.  Division  of  this  Chapter.  —  As  the  guardian  of  a 
minor  stands  in  the  place  of  a  parent,  sub  modo,  his  rights  and 
duties,  so  far  as  concerns  the  person  of  his  ward,  are  to  be 
considered  correspondingly  with  those  of  a  parent.  His  rights 
relate    chiefly   to    the   ward's    personal   custody.      His   duties 

1  Snowhill  v.  Snowhill,  2  GreeD,  Ch.  no  act  will  he  readily  interpreted  to 
20.  menu  this.     The  sale  is  supposed  to  be 

2  Brenham  v.  Davidson,  51  Cal.  352.  authorized  as  of  one  in  the  guardian 

3  Boon  v.  Bowers,  30  Miss.  246 ;  or  trust  capacity,  and  to  require  or  to 
Nelson  v.  Lee,  10  B.  Monr.  495.  respect  his  due  appointment.     Paty  v. 

4  Clarke  v.  Cordis,  4  Allen,  466.  Smith,  50  Cal.   153;  Lincoln  v.  Alex- 

5  Per  curiam,  in  Brenham  v.  David-  ander,  52  Cal.  382.  See,  further,  Ex 
son,  51  Cal  352.  An  act  of  the  legis-  parte  Atkinson,  40  Miss.  17,  to  the 
lature  cannot  authorize  a  stranger,  apart  effect  that  under  the  former  consti- 
from  guardianship,  to  sell  an  infant's  tution  of  that  State  no  probate  guar- 
land  or  other  property  as  an  individual,  dian  could  be  appointed  over  a  child 
and  so  confer  a  good  title  ;  and  certai**,w  whose  father  was  living. 

523 


§  332  THE   DOMESTIC    RELATIONS.  [PART   IV. 

are  those  of  protection,  education,  and  maintenance.  These  rights 
and  duties  will  be  considered  at  length  in  the  present  chapter. 

§  332.  Guardian's  Right  of  Custody.  —  Guardianship,  gen- 
erally, carries  with  it  the  custody  of  the  ward's  person.  This 
is  especially  true  where  the  ward's  parents  are  both  dead  or 
incompetent  to  act,  for  natural  guardians  have  the  prior  claim 
to  custody  while  alive.  Some  one  must  exercise  the  right  of 
custody  of  the  infant  when  the  natural  protector  is  wanting ; 
and  who  is  more  suitable  than  the  officer  invested  by  law  with 
the  responsibility  of  paying  for  the  child's  education  and  main- 
tenance ?  Hence  the  guardian's  title  is,  in  this  respect,  higher 
than  that  of  relatives  and  friends;  and  he  may  insist  upon 
taking  the  child  from  the  control  of  a  stepmother  or  grand- 
mother, or  from  any  person  to  whom  the  father  has  informally 
committed  the  care.1  For  such  considerations,  however  ma- 
terial in  determining  the  selection  of  a  guardian,  become  super- 
seded by  the  actual  appointment.  And  it  has  been  said  that 
the  decision  of  the  court  as  to  the  guardian's  appointment  is  a 
final  decision  as  to  the  care  and  custody  of  the  ward.2 

But  the  custody  of  infants,  as  we  have  seen,  is  a  subject 
within  the  free  discretion  of  courts  of  equity  ;  and  where  the 
interests  of  the  ward  require  it,  the  care  of  his  person  will  be 
committed  to  others.3  Chancery  jurisdiction  applies  in  this 
respect  to  testamentary  and  chancery  guardianship.  The  good 
of  the  child  is  superior  to  all  other  considerations.  Of  this  the 
court  will  judge  in  each  case  by  the  circumstances,  and  make 
orders  accordingly,  both  as  to  actual  custody  and  as  to  the  per- 
sons who  may  have  access  to  the  child.  In  determining  where 
the  infant  shall  reside,  the  infant's  inclination  shall  have  con- 
siderable  weight,  if  he  be  of  sufficient  age;  but  not,  it  would 
appear,  during  the  period  of  nurture.4 

1  Coltmau  v.  Hall,  31  Mo  Htr, ;  Bon-  4  Anon.  2  Ves.  Sen.  374;  Regina  v. 

nell  v.  Berryhill,  2  Cart.  613j  .Johns  v.  Clark,  40  E.  L.  &  Eq.  109;   People  v, 

Emraert,  62  [nd.  533.  Wilcox,  22  Barb.  178;  Bounell  v.  Berry- 

<  man's   Appeal,  21    Penn.  St.  hill,  2  Cart.  613;  Rex  v.  Greenhill,  4 

331.  Ad.  &  El.  642;  Garner  v.  Gordon,  41 

'■'■  Roach    v.   Garvin,    l     Ves.    160;  [nd.  92.    Sec  supra,  §§  245-250,  as  to 

Macphers    Inf.   119;  Story,   Eq.  Juris,  custody.     Even    a   mother,   free    from 

|  1841  ;  Ward  v.  Roper,  7  Humph.  111.  misconduct,    who    i.s    appointed    legal 

624 


CHAP.  V.]      EIGHTS   AND   DUTIES   OF   GUARDIANS.  332 

The  right  of  chancery  courts  to  regulate  the  personal  custody 
of  infants  subject  to  probate  guardianship  has  also  been  asserted 
in  this  country.  This  principle  determined  the  decision  of  the 
court  in  the  New  York  case  of  People  v.  Wilcox}  Here  it  ap- 
peared that  the  parents  had  separated,  the  father  being  a  man 
of  intemperate  habits.  The  child,  by  the  father's  permission 
was  subsequently  brought  up  at  the  house  of  his  paternal 
grandparents.  Upon  the  father's  death,  the  grandparents  se- 
cured letters  of  guardianship,  without  notice  to  the  mother, 
who  was  resident  elsewhere.  She  afterwards  came  forward 
and  claimed  control  of  her  child,  then  only  nine  years  old.  It 
appeared  that  the  child  was  happy  and  well  provided  for  at  the 
home  of  his  grandparents.  But  it  also  appeared  that  the  mother 
was  a  person  of  good  character,  and  that  no  sufficient  reason 
existed  for  depriving  her  of  her  natural  offspring.  The  child 
was  therefore  taken  from  the  legal  guardian  and  his  custody 
awarded  to  the  mother;  the  interest  of  the  child  being  duly 
taken  into  consideration. 

But  whatever  might  have  been  the  language  of  the  court 
in  this  case,  it  is  apparent  that  the  circumstances  were  of  a 
peculiar  character.  This  decision  turned  not  merely  upon 
chancery  powers.  It  recognized  the  deeper  principle  of  natural 
law,  that  the  relation  of  parent  and  child  shall  not  be  roughly 
severed.  And  thus  we  find  probate  guardianship  in  this  coun- 
try frequently  limited  by  positive  enactment,  so  as  to  reserve 
to  the  parents,  or  in  other  words  to  the  natural  guardians,  the 
natural  control  of  their  own  children  and  the  right  to  educate, 
when  alive  and  competent  to  transact  business.2  As  to  pro- 
bate guardians,  it  is  to  be  added  that  the  more  natural  course, 
so  far  at  least  as  strangers  and  distant  relatives  are  concerned, 
is,  in  controversies  like  the  foregoing,  to  apply  for  the  removal 
of  the  guardian  already  appointed,  and  for  the  appointment  of 
another  competent  to  take  actual  coutrol  of  the  ward's  person.3 

guardian  of  a  daughter  nearly  sixteen  Ramsay    v.    Ramsay,    20    Wis.     507 ; 

years  old  cannot  assume  custody  of  the  §§  290,  298,  304. 

child  where  the  latter's  welfare  opposes.         8  Under  a   State  code    which   pro- 
Reg,  v.  Gyngall,  [1893]  2  Q.  B.  232.  vides  that  a  guardian  shall  not  he  en- 

1  22  Barb.  178.  titled  to  the   custody  of   the  ward   as 

2  See  Smith's  Prob.  Pract.  82,  87 ;  against  the  parent  if  the  latter  be  "  a 

525 


§  333  THE   DOMESTIC   RELATIONS.  [PART  IV. 

§  333.  Guardian's  Right  of  Custody  ;  Subject  continued.  — 
The  English  cases  are  numerous  where  the  mother's  claim  has 
been  postponed  to  that  of  the  testamentary  or  chancery  guar- 
dian.1 And  where  the  mother  clandestinely  removes  her  child, 
the  court  has  ordered  him  to  be  delivered  up  to  the  guardian.2 
So  where  she  procures  his  marriage  in  violation  of  the  statute.3 
And  in  a  conflict  between  the  mother  and  the  infant's  paternal 
relatives,  pending  the  appointment  of  a  chancery  guardian,  the 
court  has  given  the  interim  custody  to  strangers.4  But  the 
court  interferes  with  reluctance  as  against  the  mother,  where 
no  misconduct  on  her  part  appears,  especially  if  the  infant  is 
of  tender  years  or  delicate  constitution,  and  requires  maternal 
care  and  nourishment.  And  Lord  Eldon  observed,  in  a  case 
where  the  mother's  rights  came  in  conflict  with  those  of  the 
testamentary  guardian,  that  though  the  effect  of  the  appoint- 
ment of  a  guardian  is  to  commit  the  custody  with  the  guardian- 
ship, the  court  looks  with  great  anxiety  to  the  execution  of  the 
duty  belonging  to  the  guardian,  and  the  attention  expected  to 
be  paid  to  the  reasonable  wishes  of  the  natural  parent.6  As  our 
former  discussion  of  the  subject  of  parental  custody  may  have 
led  the  reader  to  infer,  the  American  rule  is  not  uniform  in  this 
respect ;  and  as  to  testamentary  and  probate  guardians,  the  wid- 
owed mother  is  in  some  States  preferred  to  the  guardian,  while 
in  others  the  guardian  is  preferred  to  the  mother  ;  the  legislature 
frequently  supplying  the  definite  rule  of  guidance.6 

Testamentary  guardians  cannot  be  controlled  in  their  rights 
by  expressions,  in  other  parts  of  the  will  appointing  them,  which 

suitable  person,"  the  court  on  appoint-  custody  was  treated  as  superior.   Burger 

ing  a  guardian  should  leave  open  the  v.  Frakes,  67  Iowa,  460. 
question   whether  the    parent  is  suit-         x  See  Macphers.  Inf.  119-121. 
able.     McDowell   v.   Bonner,  62    Miss.  a  Wright  v.  Naylor,  5  Madd.  77. 

278.     A    guardian  is  not,  as  of  right,  3  Eyre  v.  Countess  of  Shaftesbury, 

entitled    to   the    custody   of    his    ward  2  P.  Wms.  103 ;  Gilb.  Eq.  172. 
under  fourteen  years  of  age,  but  the         4  In  reNorth,  11  Jur.  7.     See  Ander- 

(nterest  of  the  ward  will  be  considered,  ton  v.  Yates,  15  E.  L.  &  Eq.  151. 
Heather  Re,  50  Mich.  261.  6  Earl  of  Ilchester's  Case,   7  Ves. 

One  of  a  child's  grandfathers  was  380 

appointed  its  guardian;  afterwards  an-         °  Lord  v.  Ilongh,  37  Cal.  657;  Kam- 

one  adopted  it,  the  parent  before  say  v.   Ramsay,  20  Wis.    507;    contra, 

dying    giving    it   orally  to   the  latter;  Macrcady    v.   Wilcox,   33    Conn.    321. 

but  the  guardian's  right  to  the  child's  And  see  I'eacock  v.  Peacock,  61  Me.  211. 

526 


CHAP.  V.]      RIGHTS   AND   DUTIES   OF   GUARDIANS.  §  333 

amount  to  a  mere  recommendation.  A  case  of  this  sort  came 
before  Lord  Chancellor  Cottenham  in  1847.  The  testator  had 
appointed  testamentary  guardians  over  his  children  in  due  form, 
but  had  further  expressed  the  wish  that  in  case  of  his  wife's 
death  during  their  minority  they  should  be  placed  under  the 
care  of  certain  female  relatives.  The  wife  having  died,  the 
female  relatives  desired  to  assume  full  control.  The  Lord  Chan- 
cellor refused  to  accede  to  this  extent ;  but,  upon  his  suggestion, 
an  arrangement  was  effected,  satisfactory  to  all  parties,  so  as  to 
give  the  immediate  custody  to  the  relatives,  while  preserving 
to  the  testamentary  guardian  that  general  control  and  superin- 
tendence which  it  was  his  duty  to  exercise  under  the  will.1 

Chancery  will  grant  access  in  certain  cases  while  awarding 
the  custody  of  the  infant  to  other  persons.  Not  only  have 
orders  of  access  been  made  in  the  mother's  favor,  but,  after  her 
death,  access  has  been  allowed  to  her  representatives.2  And 
where  Lord  Hardwicke  appointed  a  grandmother  guardian  in 
preference  to  the  father's  executor,  lie  ordered  that  the  latter 
should  have  free  access  to  the  infants.3  So  in  a  Georgia  case 
the  court,  while  confirming  the  guardian's  right  of  custody,  al- 
lowed access  to  a  near  relative  on  her  request.4  Where,  too,  a 
decree  of  divorce  gives  the  right  of  access  to  a  certain  parent, 
not  even  a  testamentary  guardian  can  refuse  obedience.5 

Proceedings  on  a  writ  of  habeas  corpus  may  determine  the 
question  of  legal  custody  in  cases  of  this  kind.  But  a  child  in 
the  personal  keeping  of  his  guardian  is  in  legal  custody  ;  nor 
can  unlawful  imprisonment  or  restraint  be  imputed  from  the 
guardian's  refusal  to  surrender  such  child  to  the  parent.6  On 
the  other  hand,  the  court  cannot  entertain  habeas  corpus  to  re- 
store to  the  guardian  a  child  forcibly  removed  by  the  parent, 
unless  the  child  is  actually  restrained  of  liberty."     Besides  the 

1  Knott  v.  Cottee,  2  Ph.  192.  6  People  v.   Wilcox,  22   Barh.   178; 

2  Ord  ;;.  Blackett,  9  Mod.  116;  TownsencU-.  Kendall,  4  Minn.  412;  In 
Macphers.  Inf.  120.  n    Andrews,  L.   R.  8  Q.  B.  153.     The 

3  Hunter  ».  Macrae,  17  Oct.  1738;  guardian's  assent  to  a  temporary  cus- 
cited  in  Macphers.  Inf.  121.  tody  does  not  conclude  him.     Common- 

4  Ex  parte  Ralston,  1  R.  M.  Charlt.  wealth  v.  Reed,  55  Penn.  St.  425. 

119.  T  Foster  v.  Alston,  6  How.   (Miss.} 

6  Hill  r.  Hill,  49  Md.  450.  406. 

527 


§  334  THE   DOMESTIC   RELATIONS.  [PART   IV. 

writ  of  habeas  corpus,  there  is  a  remedy  by  petition  to  the  court 
of  chancery.1  In  proceedings  at  the  present  day,  English  and 
American,  whether  by  habeas  corpus  or  in  chancery,  the  inclina- 
tion grows  to  make  the  welfare  of  the  child  paramount  and  to 
treat  the  award  of  custody  as  an  equitable  matter  ;  even  though 
the  wishes  of  a  parent  or  a  testamentary  guardian  should  thereby 
be  disregarded.2 

§  334.  Guardian's  Right  to  change  Ward's  Domicile  or  Resi- 
dence. —  The  question  whether  the  guardian  may  change  the 
ward's  domicile  from  one  country  or  State  to  another  has  given 
rise  to  much  discussion.  In  England,  it  was  decided  in  the 
early  part  of  this  century  that  the  surviving  parent,  being  also 
the  guardian,  was  competent  to  do  so.3  The  case  came  before 
Sir  William  Grant,  and  was  argued  by  counsel  with  great  learn- 
ing and  ability.  It  was  here  shown  that  the  best  Continental 
jurists  supported  these  views ;  among  them,  Voet,  Eodenburgh, 
Bynkershoek,  and  Pothier.  This  is  the  leading  case  on  the  sub- 
ject, and  its  authority  has  been  fully  recognized  in  the  United 
States.4  The  great  objection  to  a  change  of  the  infant's  domi- 
cile is  that  the  right  of  succession  to  personal  property  may  be 
thereby  affected ;  and  it  seems  probable  that,  if  the  change  is 
made  with  fraudulent  intent,  to  the  ward's  injury  or  the  custo- 
dian's private  advantage,  it  will  not  be  sustained.  Moreover, 
as  the  case  above  referred  to  was  that  of  a  parent,  it  has  been 
doubted  whether  a  guardian,  as  such,  not  being  a  parent,  lias 
the  right  to  change  his  ward's  domicile.  In  Pennsylvania  such 
a  guardian's  authority  has  been  denied,  independently  of  a  court's 
permission,  and  the  power  confined  to  the  parents.5  But  Chan- 
cellor Kent  expresses  dissatisfaction  with  such  a  doctrine,  and 
considers  the  objection  against  the  guardian's  power  too  refined 
and  speculative.6     Other  American  authorities  sustain  his  view, 

1  Story,  Eq.  Juris.  §  1340,  and  cases  s  Potinger  v.  Wightman,  3  Mer.  67. 
cited  ;  and  as  to  custody  in  general,  see     And  see  preceding  chapter. 

tupra,  §£  245-250.     Concerning  statute  *   Ilolyoke   v.  llaskins,  5  Pick.  20; 

procedure  fur  custody,  see  Peacock  v.  2  Kent,  Com.  227,  n. 

Peacock,  61  Me.  211.  6  School  Directors  v.  James,  2  Watts 

2  [1893],   2   Q.   B.   232;    People   v.  &  Serg.    568;    and    see   Story,    Confl. 
Wan.,   1^2  N.  Y.   238;    Lally   v.   Fitz  Laws,  §§  494,  504 ;  14  Phila.  298. 
Henry,  85  Iowa,  49.  °  2    Kent,   Com.    227,  n.   (c),   where 


this  suhject  is  fully  discussed. 


528 


CHAP.  V.]      RIGHTS   AND  DUTIES   OF   GUARDIANS.  §  334 

though  in  general  assuming  the  principle,  rather  than  asserting 
it,  and  not  without  some  bias  as  to  the  particular  consequences 
to  result.1  The  particular  question  does  not  seem  to  have  been 
raised  in  England.  With  the  facilities  of  modern  travel  and  the 
liberal  intercourse  of  nations,  the  tendency  increases  in  favor  of 
the  guardian's  power  to  change  in  good  faith  his  ward's  resi- 
dence, if  not  the  domicile,  and  even  though  not  endowed  with 
parental  authority.  This  principle  is  the  more  readily  admitted, 
so  far  as  different  counties  in  the  same  State  are  concerned.2 
And  it  would  be  unwise  for  American  courts  to  apply,  as  between 
States  united  under  one  general  government,  the  same  rigidly 
exclusive  doctrines  which  foreign  countries  differing  in  religion, 
customs,  and  civil  institutions,  may  see  fit  to  adopt  in  their  in- 
tercourse with  one  another.  For  such  a  change  might  be  for 
the  direct  benefit  of  the  ward's  health,  education,  or  personal 
surroundings,  and  the  same  guardian  might  procure  a  new  ap- 
pointment in  the  State  of  new  residence.3 

The  English  chancery  court  reluctantly  permits  its  wards 
to  be  carried  out  of  the  national  jurisdiction.  The  Chancellor 
in  De  Manneville  v.  De  Maniieville  restrained  a  father,  himself  an 
alien,  from  removing  his  child  to  a  foreign  country.4     In  other 

1  See  Lamar  v.  Micou,  114  U.  S.  died,  a  successor  in  the  trust  was  to  be 
218,  where  with  the  guardian's  assent  appointed  in  a  different  county ;  which 
the  infants  acquired  a  grandmother's  would  have  been  disadvantageous  to 
domicile.  the  ward. 

Where  clearly  disadvantageous  to  3  In  Wilkins's  Guardian,  146  Peon. 
the  ward  and  the  ward's  kindred  and  St.  585  (1891),  School  Directors  v. 
connections,  this  right  is  not  favored.  James,  supra,  is  denied  or  distin- 
The  guardian's  right  to  change  the  guished ;  and  a  guardian  was  permit- 
domicile  is  denied  where  such  change  ted  to  change  his  ward's  residence  for 
affects  the  ward's  testamentary  capa-  bona  fide  and  salutary  reasons,  without 
city.  Daniel  v.  Hill,  52  Ala.  430.  Or  consent  of  the  domiciliary  court,  by 
where  he  sent  the  ward  away  to  pre-  bringing  the  ward  into  this  State  and 
vent  a  marriage  against  his  wishes;  taking  letters  in  the  new  jurisdiction 
such  marriage  not  being  an  objection-  of  residence. 
able  one.      Wynn  >•.  Bryce,  59  (ia.  529.  A  mere  custodian  of  the  child  under 

2  Ex  parte  Bartlett,  4  Bradf.  221.  the  guardian's  sanction  has  of  course  no 
But  the  guardian's  intention  to  change  right  to  change  the  ward's  domicile, 
the  ward's  domicile,  especially  in  the  Mills  r.  Hopkinsville,  Am.  Dig.  1889; 
case  of  a  very  young  child,  is  not  to  be  Allgood  v.  Williams,  92  Ala.  551. 
presumed.  Marheineke  v.  Grothaus,  4  10  Yes.  52.  See  Dawson  v.  Jay 
72   .Mo.  204.     Here  the   question   arose  27  E.  L.  &  Eq.  451. 

as    to   whether,   the   guardian    having 

3i  529 


§  335 


THE   DOMESTIC    RELATIONS. 


[PART   IV 


cases,  permission  has  been  granted  under  stipulations  for  the 
benefit  of  the  child ;  the  guardian  being  required  to  transmit 
regular  returns  to  the  court  with  vouchers,  and  to  bring  back 
the  ward  within  a  specified  time.1  Similar  orders  in  chancery 
have  been  made  in  this  country,  though  rarely.2 

§  335.  Right  to  Personal  Services  of  Ward  ;  to  Recover 
Damages ;  Other  Rights.  —  The  guardian  has  not  the  same  right 
as  a  father  to  the  personal  services  of  the  infant,  where  he  does 
not  undertake  to  stand  in  loco  parentis,3  which  he  sometimes 
does.  For  as  his  duty  to  educate  and  maintain  is  limited  by 
law  to  the  ward's  resources,  and  is  not,  like  the  responsibility  of 
a  parent,  absolute,  so  his  rights  are  those  of  a  representative,  who 
should  seek  to  add  to  the  trust  fund  in  his  hands,  and  not  to  his 
own  private  emolument.4 

By  the  common  law,  the  guardian  could  maintain  an  action 
of  trespass  and  recover  damages  for  his  ward ;  and  the  statute 
of  Westminster  II.  c.  32,  gave  a  writ  of  ravishment,  by  means  of 
which  he  could  recover  the  body  of  the  heir  as  well  as  damages.5 
The  equity  of  this  statute  may  perhaps  extend  to  testamentary, 
chancery,  and   probate   guardians,   as   well  as  to  guardians  in 


1  Jeffreys  v.  Vanteswartsworth, 
Barn.  141  ;  Jackson  v.  Haukey,  Jac. 
265,  n. ;  Stephens  v.  James,  1  M.  &  K. 
627  ;  Lethem  v.  Hall,  7  Sim.  141  ;  Tal- 
bot v.  Earl  of  Shrewsbury,  18  L.  J.  125. 
See  Macphers.  Inf .  129-132. 

-  Ex  /xirte  Martin,  2  Hill,  Eq.  71. 
Lord  Chancellor  Cottenham  has  ob- 
Berved,  on  this  subject,  that  while  cir- 
cumstances may  occur,  such  as  the 
ill-health  of  the  ward,  so  as  to  render 
his  removal  necessary,  the  general  rule 
ought  to  be  against  permitting  an 
infant  ward  to  be  taken  out  of  the 
jurisdiction.  He  further  declared  his 
regret  that  this  rule  had  nol  been  mure 
strictly  adhered  to,  and  his  conviction 
that  a  permanent  residence  abroad  was 
injurious  to  the  future  prospects  of 
English  children,  inasmuch  as  they 
were  thus  deprived  of  their  religions 
opportunities,  separated  from  their 
natural  connections,  estranged  from 
the   members  of    their  own    families, 

530 


withdrawn  from  those  courses  of  edu- 
cation which  their  contemporaries  were 
pursuing,  and  accustomed  to  habits  and 
manners  which  were  not  those  of  their 
own  country,  and  were  constantly  be- 
coming from  day  to  day  less  and  less 
adapted  to  the  position  which  they 
should  afterwards  occupy  in  their  na- 
tive land.  Campbell  v.  Mackay,  2  M. 
&C  81. 

3  See  §  280. 

4  See  Bass  v.  Cook,  4  Port.  390; 
Bouv.  Diet.  "  Guardian  ;  "  Bannister  v. 
Bannister,  44  Vt.  624  ;  Haskell  v.  Jew- 
ell,  59  Vt.  91.  A  guardian  commits  no 
breach  of  duty  towards  his  ward  who  is 
nearly  of  age,  in  permitting  the  ward  to 
devote  all  his  wages  towards  keeping 
together  and  supporting  his  orphan 
ln'i ii  hers  and  sisters.  Shurtleff  v  Kile, 
14<)  Mass.  218.  Otherwise  semble  if  the 
guardian  allowed  such  wages  to  be  de- 
voted to  vicious  and  improper  uses.    lb. 

6  Bac.  Abr.  Guardian,  (F) 


CHAP.  V.]      RIGHTS   AND   DUTIES   OF   GUARDIANS.  §  336 

socage ;  on  which  principle  it  has  been  held  that  the  guardian 
may  sue  and  recover  damages  for  the  seduction  of  his  female 
ward.1  Local  statutes  in  this  country  sometimes  enlarge  the 
guardian's  risht  of  action  for  the  benefit  of  his  ward  ;  and,  as  a 
a  rule,  if  a  minor  under  guardianship  sustains  a  personal  injury 
from  the  tort  of  another  his  guardian  may  sue  and  recover  for 
the  ward's  benefit  just  as  the  latter  might  have  recovered  through 
next  friend  in  case  he  had  no  guardian.2  But  the  guardian  has 
no  personal  right  of  action  like  a  parent  to  recover  for  loss  of 
services  of  the  child.3 

The  guardian,  acting  in  loco  parentis,  may  bind  out  his  ward 
as  an  apprentice  whenever  the  father  could  do  so.  This,  how- 
ever, is  a  matter  almost  exclusively  of  statute  regulation. 
And  while  the  father  is  usually  held  liable  in  damages  for  his 
son's  breach  of  contract,  it  would  seem  that  the  guardian  is 
not  personally  responsible  for  his  ward  unless  the  statute  makes 
him  so.4 

As  the  guardian  is  bound  to  promote  the  moral  welfare  of 
the  person  intrusted  to  his  care,  he  may  warn  off  from  the 
ward's  premises  any  persons  improper  for  him  to  associate  with, 
and,  if  necessary,  expel  them  forcibly.  This  right  is  to  be 
reasonably  construed  ;  and  iu  the  use  of  means  and  the  amount 
of  force  necessary  to  effect  his  object,  he  is  allowed  a  liberal 
discretion,  such  as  a  parent  might  exercise  under  like  circum- 
stances.5 And  in  many  other  respects  the  rights  of  a  guardian 
resemble  closely  those  of  a  parent  pro  tanto* 

§  336.  Guardian's  Duties  as  to  Ward's  Person  ;  in  General.  — 
The  guardian's  duties  as  to   the   ward's   person   are    those   of 


1  Fernslee  v.  Moyer,  3  Watts  &  cannot  manifestly  be  subjected  to  the 
Serg.  416.  same  personal  restraint  ami  custody  as 

2  §§  427-430 ;  Louisville  R.  v.  Goody-  infants.  But  the  fact  that  Buch  ward 
koontz,  119  Ind.  Ill,  where  the  child  occupies  his  own  house  affords  him  no 
died  from  the  injury.  special  immunity  against  his  guardian. 

3  119  Ind.  Ill  ;  §§  258-262.  Reim-  Accordingly,  it  has  been  held  that  the 
bursement  of  the  ward's  estate  for  ined-  guardian  of  a  spendthrift  may  enter  the 
ical  attendance  is  a  proper  item  of  dwelling-house  of  the  latter,  in  the  per- 
damage.  formance  of  official  duties,  without  his 

4  Velde  v.  Levering,  2  Rawle,  269.  permission  and  against  his  will.     State 

5  Wood  v.  Gale,  10  N.  H.  247.  v.  Hyde,  29  Conn.  564. 

6  Insane   persons  and    spendthrifts 

531 


§  337  THE   DOMESTIC   RELATIONS.  [PART  IV. 

protection,  education,  and  maintenance.  In  exercising  them, 
he  is  bound  to  regard  the  ward's  best  interests.  Guardians, 
as  we  have  seen,  are  seldom  appointed  where  there  is  not  some 
property.  But  even  though  the  ward  be  penniless,  we  are  not 
to  suppose  that  one  vested  with  the  full  right  of  custody  can 
neglect  with  impunity  those  offices  of  tenderness  which  com- 
mon charity  as  well  as  parental  affection  suggest.  For  to  the 
orphan  he  stands  in  some  sense  in  the  place  of  a  parent,  and 
supplies  that  watchfulness,  care,  and  discipline  which  are 
essential  to  the  young  in  the  formation  of  their  habits,  and 
of  which  being  deprived  altogether,  they  had  better  die 
than  live. 

§  337.  Liability  for  Support  of  "Ward.  —  It  is,  however,  to 
be  always  borne  in  mind  that  while  the  father  is  bound  to 
educate  and  maintain  his  minor  children  absolutely  and  from  his 
own  means,  with  a  right  to  their  services  as  an  offset,  no  such 
pecuniary  responsibility  is  imposed  upon  a  guardian  who  is  not 
the  parent  or  does  not  undertake  to  stand  in  place  of  one.  The 
latter,  by  virtue  merely  of  such  trust,  need  only  use  for  that 
purpose  the  ward's  fortune.  Hence,  in  supplying  the  wants  of 
his  wards,  he  is  to  consider,  not  the  style  of  life  to  which  they 
have  been  accustomed,  so  much  as  the  income  of  their  estate  at 
his  disposal.  Whatever  their  social  rank  may  have  been,  he 
may,  provided  they  are  left  destitute,  place  them  at  work,  or,  if 
they  are  too  young  or  feeble,  surrender  them  to  some  charitable 
institution  ;  they  should,  if  old  enough  and  able,  be  kept  at  work 
earning  their  support.  An  agreement  may  thus  be  made  be- 
tween the  guardian  and  some  relative  of  the  child  or  a  stranger, 
for  the  fair  support  of  the  ward  in  exchange  for  his  services. 
He  should,  however,  act  witli  delicacy  and  prudence ;  he  may 
properly  consider  in  this  connection  the  habits  and  tastes  of 
the  children  and  the  wishes  of  their  relatives;  and  he  can 
relieve  himself  of  responsibility  by  asking  judicial  guidance. 
The  courts  show  a  liberal  disposition  to  protect  the  guardian 
from  personal  liability  on  account  of  his  ward.  And  if  a  guar- 
dian has  permitted  the  ward,  at  his  own  cost,  to  remain  in  the 
cue  and  custody  of  another,  without  express  contract  as  to  the 
period  of  time,  he  may,  whenever  he  pleases,  terminate  his  own 
532 


CHAP.  V.J      EIGHTS   AND   DUTIES   OF   GUARDIANS.  §  337 

personal  liability  by  giving  notice.  Nor  does  it  affect  the  case 
that  his  ward  is  then  too  sick  to  be  removed.1 

But  if  the  income  of  the  ward's  estate  is  ample  for  payment 
of  the  necessaries  supplied  him,  the  creditors  may,  by  a  proper 
course  of  procedure,  have  it  subjected  to  the  satisfaction  of  their 
just  claims.  And  this  too,  it  would  appear,  notwithstanding 
any  personal  undertaking  on  the  guardian's  part.2  Not  even 
funds  derived  from  a  minor's  pension,  granted  under  the  United 
States  laws,  are  exempt  from  liability  for  the  ward's  support.3 

On  the  other  hand,  the  guardian  may  make  himself  liable 
for  his  ward  whenever  he  chooses  to  do  so,  and  makes  that  choice 
manifest,  like  any  one  else  in  loco  parentis.  If  a  guardian  con- 
tracts with  another  to  support  his  ward,  he  may  become  per- 
sonally bound  by  his  failure  to  limit  the  right  for  indemnity  to 
the  estate  in  his  hands.4     And  whenever  he  takes  the  ward  into 


1  Spring  17.  Woodworth,  4  Allen, 
326;  Overton  v.  Beavers,  19  Ark.  623; 
Bredin  v.  Dwen,  2  Watts,  95 ;  Hussey 
v.  Roundtree,  Busb.  110;  Gwaltney  v. 
Cannon,  31  Ind.  227 ;  McDaniel  v. 
Mann,  25  Tex.  101  ;  Ford  v.  Miller,  18 
La.  Ann.  571  ;  Brown  v.  Yaryau,  74 
Ind.  305.  As  soon  as  one  not  a  parent 
or  in  loco  parentis  is  appointed  guar- 
dian, he  may  charge  for  the  support  of 
the  ward.  Pratt  v.  Baker,  56  Vt.  70 ; 
Mover  v.  Fletcher,  56  Mich.  508.  A 
guardian  who  is  also  stepfather,  and 
maintains  the  wards  in  his  family  and 
receives  their  services,  may  be  allowed 
a  reasonable  sum  for  their  support. 
Latham  v.  Myers,  57  Iowa,  519;  Mar- 
quess v.  Le  Baw,  82  Ind.  550  ;  73  Mich. 
220.  The  guardian  cannot  charge  his 
ward's  estate  for  money  expended  in 
board  and  education,  unless  there  was 
no  parent  able  or  willing  to  provide, 
and  the  estate  justified  the  expenditure. 
State  v.  Roche,  91  Ind.  406.  Nor  can 
he  squander  the  ward's  money  in  pay- 
ing others  for  the  ward's  maintenance. 
Conant  v.  Souther,  80  Wis.  656. 

Some  State  codes  require  that  the 
guardian  of  a  minor  who  has  a  father 
or  mother  shall  not  expend  anything 
for  the  ward's  support  without  a  pre- 


cedent order  of  court.  61  Miss.  148. 
And  see  Stigler  v.  Stigler,  77  Va.  163. 
If  the  guardian  pays  in  such  cases  at 
all,  it  does  not  follow  that  he  must  pay 
into  the  parent's  own  hands.  6  Dem. 
Sur.  39.  As  to  orders  authorizing  ex- 
penditure for  the  support  of  a  lunatic, 
see  Hambleton's  Appeal,  102  Penn.  St. 
50. 

2  Barnum  v.  Frost,  17  Gratt.  398; 
Walker  v.  Browne,  3  Bush,  68G.  Suit 
on  the  probate  bond  by  permission  of 
court  is  the  common  remedy  in  many 
States.     ( 'ole  v.  Eaton,  8  Cash.  587. 

3  Welch  v.  Burris,  29  Iowa,  186; 
Brown's  Appeal,  112  Penn.  St.  18. 

4  See  Lewis  v.  Edwards.  44  Md.  .333, 
as  to  offsets  for  the  services  of  the  ward 
to  one  who  sues  the  guardian  for  his 
board.  On  the  principle  of  the  text,  a 
car-e  in  Vermont  was  decided  a  few  years 
ago.  The  guardian  had  contracted  f"r 
the  board  of  Ins  ward,  at  a  dollar  and 
a  half  a  week,  fixing  no  limitation  as 
to  time.  The  person  furnishing  the 
board  afterwards  notified  him  that  he 
should  raise  the  price  to  two  dollars  a 
week,  and  that  if  this  was  not  satisfac- 
tory the  ward  must  lie  taken  away. 
The  guardian  did  not  take  the  ward 
away,  nor  on  the  other  hand  did   he 

533 


§  337 


THE   DOMESTIC   RELATIONS.  [rART   IV. 


his  own  household  as  a  boarder,  the  value  of  the  child's  services 
received  must  be  computed  as  agaiust  any  charge  of  the  guardian 
for  care  and  maintenance.1 

For  necessaries  of  his  ward,  supplied  by  the  guardian's  order 
and  on  his  credit,  the  guardian  then  is  liable;  and  this  on  the 
principle  to  be  noticed  hereafter,  that  the  guardian  has  made  a 
contract.  A  guardian,  it  is  true,  cannot  bind  his  infant  ward, 
or  the  latter's  estate,  by  a  contract,  even  for  necessaries.2  But 
he  is  of  course  entitled  to  a  proper  reimbursement  for  the  neces- 
saries thus  supplied  by  himself  from  the  ward's  estate.  So, 
where  he  advances  money  for  the  ward's  maintenance  and  edu- 
cation.3 On  the  ward's  own  contract  for  necessaries,  the  guar- 
dian is  not  personally  liable.  And  it  would  appear  from  some 
cases  that  his  knowledge  of  the  ward's  contract  and  failure  to 
dissent  will  not  suffice ;  or,  in  other  words,  that  an  express  con- 
tract should  be  shown  to  charge  the  guardian  personally.  Yet 
such  a  contract  of  the  ward  may  be  ratified  by  the  words  or  acts 
of  a  guardian ;  and  we  presume  that  he  may  generally  be  held 
bound  on  a  contract  shown  by  strong  implication  to  have  existed 
between  him  and  the  party  furnishing  education  or  support.4 
As  a  rule  the  guardian,  if  custodian  of  the  ward's  person,  has 
the  same  right  to  judge  as  to  what  are.  necessaries,  according  to 
the  estate  and  social  position  of  his  ward,  that  a  parent  would 
have  for  his  own  child  ;5  and  others  who  supply  the  minor  are 


expressly  accede  to  the  new  contract. 
But  the  court  inferred  from  the  cir- 
cumstances that  he  had  made  himself 
personally  liable  for  the  increased  rate. 
It  was  observed  in  this  case  that  the 
guardian  has  the  possession  and  con- 
trol of  the  ward's  estate,  for  his  sup- 
port and  maintenance,  and  has  the 
power  of  indemnifying  himself  for  any 
contracts  he  may  make;  that  it  is  his 
38  to  know  the  amount  and  situ- 
ation of  the  estate,  and  that  he  is  not 
obliged  to  incur  any  liability  lieyond 
it.  If  lie  do  so,  it,  is  his  own  fault,  for 
which    Others,    who   cannot,    lie   so   well 

■  •■I  of  this  knowledge,  ought  not 
to  suffer.    But  the  court  also  held  that, 

under  the  above  contract  the  guardian 

534 


was  not  personally  liable  for  extra 
charges  against  the  ward,  such  as  re- 
pairs on  clothing,  washing,  care  and 
medical  attendance  while  sick,  and 
burial  expenses.  Hutchinson  v.  Hutch- 
inson, 19  Vt.  437. 

i  Otis  v.  Hall,  117  N.  Y.  131 ;  Mar- 
quess v.  Le  Baw,  82  Ind.  550 ;  Starling 
v.  Balkum,  47  Ala.  314. 

2  Reading  v.  Wilson,  38  N.  J.  Eq.  446. 

3  Smith's  Appeal,  30  Penn.  St.  397  ; 
Rollins  v.  Marsh,  128  Mass.  116;  infra, 
c.  6. 

4  Tucker  v.  McKee,  1  Bailey,  344  ; 
Hargrove  v.  Webb,  27  Ga.  172;  Oliver 
v.  Houdlet,  13  Mass.  237. 

6  Nicholson  r.  Spencer,  11  Ga.  607; 
Kraker  v.  Bjrum,  13  Rich.  163. 


CHAP.  V.]      RIGHTS    AND   DUTIES   OF  GUARDIANS.  §  338 

bound  to  take  heed  accordingly.1  The  ward  is  not  to  he  judge 
of  his  own  necessaries ;  it  is  the  guardian  rather,  or  the  court.2 
It  is  held  that  the  guardian  appointed  in  one  State  may  sue  a 
foreign  guardian  for  the  support  and  education  of  wards  left 
with  the  former  by  consent  of  the  latter  guardian.3  So,  wher- 
ever a  town  is  liable  for  the  support  of  a  ward  as  a  pauper,  his 
guardian  may  claim  reimbursement  for  necessary  expenses  in- 
curred after  the  ward's  property  has  been  exhausted.4  A  guar- 
dian is  presumed  to  furnish  all  necessaries  for  his  infant  ward, 
and  a  stranger  who  furnishes  them  must  in  general  contract  with 
the  guardian  himself.5  But  where  the  guardian  makes  pur- 
chases, the  party  furnishing  the  goods  is  not  bound  to  see  that 
payment  is  made  from  the  ward's  income.  This  risk  must  be 
run  by  the  guardian  himself,  for  the  facts  are  within  his  own 
peculiar  knowledge.6  And  the  usual  principle  is,  where  the 
guardian  has  contracted  for  his  ward's  support  without  express 
restriction,  that  the  creditor  holds  the  guardian  liable  individually, 
relying  upon  the  latter' s  promise,  while  the  guardian  may  reim- 
burse himself  out  of  the  ward's  estate  so  far  as  justice  permits. 

§  338.  Same  Subject  ;  Using  Income  or  Capital,  &c.  —  The 
doctrine  has  been  repeatedly  declared  that  no  guardian  can  ex- 
pend more  than  the  income  of  his  ward's  estate  without  proper 
judicial  sanction.  This  is  the  settled  rule  in  chancery,  and  it 
is  universally  applicable  in  the  United  States.7  And  a  similar 
principle  prevails  under  the  civil  law.8  But  to  what  extent  the 
guardian  renders  himself  personally  liable,  by  exceeding  the 
iucome  without  previous  sanction  of  the  court,  is  not  quite 
clear.  The  English  rule  is  undoubtedly  strict.  But  as  to  pro- 
bate guardians,  and  in  modern  practice,  legal  formalities  have 
been  considerably  relaxed  ;  though  the  rule  is  still  that  the  cap- 

1  McKanna  >\  Merry,  61  111.  177.  1  Tn  re  Bostwick,  4  Johns.  Oh.  100; 

2  52  Hun,  119.  Myers  v.   Wade,    6    Rand.   444;    2    .1. 
8  Spring   v.    Woodworth,    2    Allen,     J.    Marsh.   40.3;  Villard    v.   Chovin,    2 

206.  Strobh.  Eq.  40;  State  v.  Clark,  16  Ind. 

4  Eisk  v.  Lincoln,  19  Pick.  473.  See  97;  Beeler  v.  Dunn,  3  Head,  S7  :  3 
Preble  v.  Longfellow,  48  Me.  279.  Dem.    140;  Dowling  v.  Feeley,  72  Ga. 

5  State  v.  Cook,  12  Ired.  67;  Roy-  557.  See  Louisiana  rnle  as  to  the  au- 
ston  i'.  Royston,  29  Ga.  82.  thority  of  a  family  meeting.      36  La. 

6  Broadus  v.   Rosson,  3  Leigh,   12;  Ann.  312. 

Hutchinson  v.  Hutchinson,  19  Vt.  437.  8  Payne  v.  Scott,  14  La.  Ann.  760. 

535 


§  338  THE   DOMESTIC   RELATIONS.  [PART  IV. 

ital  should  not  be  encroached  upon  without  judicial  leave,  to 
meet  expenditures  which  are  beyond  the  ward's  means,  however 
suitable  to  his  social  position.  In  most  of  the  United  States 
the  guardian  is,  doubtless,  justified  in  breaking  the  principal 
fund,  under  strong  or  sudden  circumstances  of  necessity,  for 
the  benefit  of  his  ward,  and  he  may  leave  his  conduct  to  the 
subsequent  approval  of  the  court  when  he  presents  his  ac- 
counts. In  cases  of  risk  and  uncertainty,  however,  the  proper 
course  is  to  obtain  a  previous  order.1 

The  order  in  which  the  ward's  property  should  be  expended 
for  his  support  and  education  is  as  follows  :  first,  the  income  of 
the  property ;  next,  if  that  proves  insufficient,  the  principal  of 
personal  property ;  lastly,  if  both  are  inadequate,  the  ward's 
real  estate,  or  so  much  of  it  as  may  be  necessary.  A  court 
should  protect  personal  capital  while  there  is  income,  and  realty 
while  there  is  income  or  personal  capital  at  all.  The  ward's 
real  estate  can  never  be  sold,  except  under  a  previous  order  of 
court.  Nor  can  a  guardian  use,  in  maintaining  his  ward,  the 
proceeds  of  real  estate  sold  for  the  purpose  of  reinvestment 
only,  any  more  than  he  could  have  used  the  real  estate  itself. 
He  should  ask  to  sell  for  the  purpose  of  maintenance.2  In  fair 
instances  a  court  has  ordered  a  sale  of  the  ward's  real  estate 
for  reimbursement  of  the  guardian's  expenses  of  support,  though 
petition  in  advance  is  the  safer;3  but  a  guardian  who  has 
enough  personalty  of  the  ward  cannot  charge  the  ward's  realty 
by  his  contracts.4 

In  some  cases  it  becomes  both  reasonable  and  necessary  to 
exceed  the  ward's  income,  and  the  judicial  sanction  is  granted 

1  Story,  Eq.  Juris.  §  1355;  Chapline  Miss.  277  ;  63  Miss.  143  ;  91  Mich.  270; 

?•.  Moore,  7  Monr.  150;  Davis  r.  Hark-  Jones  v.   Parker,  67  Tex.  76.     But  in 

Dees,  1    Gilm.   173;   Davis  ?-.  Roberts,  other  States  ratification  by  the  court  is 

1  Sm.  &    M.  Ch.  543;  Royston  v.  Roy-  equivalent  to  a  previous  authority.    113 

Bton,  29  6a.  32;  Foteaux  v.  Le  Page,  Penu.  St.  46;  Ward  Re,  73  Mich.  220; 

6  Clarke  (Iowa),   123;    Gilberl  v.  Mc-  34  S.  C.  496. 

I       ien,38  Miss.  (69 ;  Phillips/-.  Davis,         -  Strong  v.  Moe,  8  Allen,  125;  Rin- 

•j  Sneed,  520;  Cummins  v    Cummins,  ker  v.  Street,  33  Gratt.  663.     See  St. 

29   111     152;  Cohen  v.  shyer,  l   Tenn.  Joseph's    Academy    v.   Augustine,    55 

Ch.  192.     Some  State  codes  lay  down  Ala.  493. 

a  strict    rule  concerning  the  previous         a  Bellamy  v.  Thornton  (1894),  Ala. 
sanction  of  the  court  to  exceeding  the         4  Roscoe  v.  McDonald  (1894),  Mich, 
income.      Boyd  v.  Bawkins,  60 

536 


CHAP.  V.]      RIGHTS   AND   DUTIES   OF   GUARDIANS.  §  339 

accordingly.  Thus  courts  of  chancery,  or  even  of  probate,  author- 
ize the  capital  to  be  broken  upon,  or,  if  need  be,  the  whole 
estate  to  be  consumed,  where  the  property  is  small  and  the 
income  inadequate  for  support.1  As  where  the  ward's  educa- 
tion is  nearly  completed,  especially  if  he  will  thereby  be  fitted 
for  a  profession.  Or  where  the  ward  is  mentally  or  physically 
unfit  to  be  bound  out  as  an  apprentice.2  So,  too,  in  case  of 
extreme  sickness,  or  other  emergency,  or  for  the  burial  of  a 
dead  ward,  where  an  unusual  and  sudden  outlay  becomes  neces- 
sary.3 And  the  guardian  can  anticipate  the  income  of  one 
year  in  supplying  the  casual  deficiency  of  another.4  And  he 
may  treat  an  increase  of  value  in  his  ward's  property  as  in- 
come.5 And  he  may  use  the  accumulated  profits  of  previous 
years  where  necessary.  A  young  lady  who  is  a  ward  may  be 
allowed  small  sums  by  way  of  spending-money  for  her  personal 
needs,  apart  from  what  may  be  actually  necessary  to  eat  and 
wear.0  In  short,  the  guardian  is  allowed  a  liberal  discretion 
in  expenditures  for  maintenance  and  education,  so  long  as  he 
refrains  from  encroaching  upon  the  ward's  capital;7  and  in 
extreme  cases  he  may  intrench  upon  the  capital  itself  where 
this  is  for  the  ward's  welfare.  So  it  is  held  that  he  is  limited 
in  his  disbursements,  not  to  the  income  of  the  ward's  estate 
actually  in  his  hands,  but  to  the  income  of  the  ward's  estate 
wherever  situated.8 

§  339.  Allowance  to  Parent  for  Ward's  Support  ;  Chancery 
Rules. —  As  the  father  is  bound  to  support  his  own  children,  he 
cannot,  when  guardian,  claim  the  right  to  use  the  income  of 
their  property  for  that  purpose ;  much  less  to  disturb  the  prin- 

1  McDowell  v.  Caldwell,  2  McC.  Ch.         6  Karney  v.  Vale,  56  Ind.  542. 

43  ;  Farrance  v.  Viley,  9  E.  L.  &  Eq.  "  Brown  v.  Mullins,  24  Miss.  204  ; 

219  ;    Roseborough  v.  Roseborough,  3  Speer  v.  Tinsley,  55  Ga.  89. 

Baxt.  314  ;  4  Dem.  304.  8  Foreman  v.  Murray,  7  Leigh,  412  ; 

2  Johnston  v.  Coleman,  3  Jones,  Eq.  Maclin  v.  Smitli,  2  Ired.  Eq.  371.  And 
290;  Campbells.  Golden,  79  Ky.  544.  see  In  re  Coe's  Trust,  4  K.  &  J.  199. 

3  Long  v.  Xorcom,  2  Ired.  Eq.  354  ;  If  the  guardian  pays  money  from  the 
In  re  Clark,  17  E.  L.  &  Eq.  599;  Hobbs  principal  of  bis  ward's  estate  to  a  suit- 
v.  Harlan,  10  Lea,  2fi8.  able  person  for  the  ward's  support,  and 

4  Carmichael  v.  Wilson,  3  Moll.  87;  the  money  is  reasonably  expended,  he 
Bybee  v.  Tharp,  4  B.  Monr.  313.  cannot  recover  back  the  amount  from 

5  Long  v.  Xorcom,  2  Ired.  Eq.  354 ;  such  person.  Chubb  v.  Bradley,  58 
Macphers.  Iuf.  337,  338.  Mich  268. 

537 


§  339  THE   DOMESTIC   RELATIONS.  [PART  IV. 

cipal.  But,  as  we  have  seen,  a  father  is  allowed,  when  his 
means  are  small,  to  claim  assistance  from  their  fortunes,  to 
bring  them  up  in  becoming  style.  And  where  the  father, 
when  acting  as  guardian  for  his  own  children,  might  have 
reimbursed  himself,  any  other  person,  as  guardian,  may  help 
him  ;  rather,  however,  for  the  future  than  for  the  past.1 

The  allowance  of  money  for  the  maintenance  and  education 
of  infants  constitutes  au  important  branch  of  the  English  as 
contrasted  with  our  American  chancery  jurisprudence.  Gen- 
erally speaking,  whenever  application  is  made  for  the  appoint- 
ment of  a  chancery  guardian,  maintenance  is  also  applied  for ; 
and  the  guardian  receives  no  more  than  the  annual  sum  fixed 
by  the  court.  The  ward's  whole  fortune  is  held  at  the  dis- 
posal of  the  court,  whether  the  infant  was  made  a  ward  by  suit 
or  otherwise.  If  a  suit  be  pending,  the  guardian  receives  his 
allowance  through  the  receiver  or  some  other  officer  of  the 
court.  If  there  be  no  suit  pending,  the  executor  or  trustee 
pays  the  annual  sum  fixed  by  the  court ;  and  if  the  whole  pro- 
ceeds of  real  estate  be  ordered  for  maintenance,  the  tenants  are 
safe  in  attorning  to  the  guardian.  But  parties  making  payment 
are  discharged  only  to  the  extent  of  the  allowance  decreed.2 


1  Macphers.  Inf.  219 ;  Clark  v.  Mont-  maintenance  is  the  less  readily  allow- 

gomery,  23  Barb.  464  ;  Beasley  v.  Wat-  able.     Folger   v.   Heidel,  60    Mo.    284. 

son,  41   Ala.  234;  Welch  v.  Burris,  29  Yet  future  maintenance  is  chargeable 

Iowa,   186;    Myers  v.  Wade,  6    Rand,  where  the  ward's  means  were  dispro- 

444;  Walker  v.  Crowder,  2  Ired.   Eq  portionate  to  the  parent's  and  needful 

478.     See   supra,   §§   237-240.     As   to  to  provide  in  suitable  style;  and  even 

parents,    and    those   like   a   stepfather  past  maintenance  may  be  thus  allowed. 

who  choose  to  stand  in  place  of  a  par-  Supra,  Part   III.   c.   2.     And  if  one  in 

•■in,  the   rules  of  maintenance  which  place  of  parent  has  undertaken  the  func- 

have  already   been   stated  apply  as  to  tion  upon  some  such  proviso,  the  ward's 

allowances,    in   a  guardian's  ac-  income    may    he    used.     The    circum- 

counts.     If  the  guardian,  or  the  person  stances  may  always  be  considered  and 

with  whose  claim  he  charges   himself,  the  proportionate  means  as  between  the 

was  of  adequate  means,  and  bound  le-  ward  and  the  person  fulfilling  the  pa- 

gally  i"  maintain  the  child  as  parent,  or  rental  functions.     Voessing  v.  Voessing, 

fully  undertook  to  supply  the  place  of  4  Hedf.  360.     The  guardian  of  an  in- 

parent,  education  and  support  cannot  sane  ward  may  properly  charge  for  the 

generally   be  allowed   from   the  ward's  expense  of  boarding  the  ward  at  an  in- 

Bradford  v.  Bodflsh,  39  Iowa,  sane  asylum:  the   ward's  estate   being 

r.-i  ;  Douglas's  Appeal,  ^2   Penn.  St.  sufficient  for  such   expenditure.     Cor- 

169;  Snover  v.  Prall,  38  N.  J.  Eq.  207  ;  corau  v.  Allen,  11  R.  I.  567. 
94  Penn.  St.  62.     The  expense  of  past         3  Macphers.    Inf.    106;    Ex    parte 

538 


CHAP.  V.]      RIGHTS   AND   DUTIES   OF   GUARDIANS. 


§340 


Testamentary  guardians  are,  however,  frequently  authorized 
by  the  testator  to  apply  at  discretion  from  the  income  of  the 
infant's  fund,  or  from  the  capital,  for  his  support ;  and  such  dis- 
cretion will  not  be  controlled  so  long  as  the  guardian  acts  in 
good  faith.  But  trustees  and  guardians  frequently  procure  an 
order  of  maintenance,  notwithstanding,  in  order  to  relieve  them- 
selves of  all  responsibility.1  Doubts  were  formerly  entertained 
of  the  power  of  chancery  to  interfere  in  these  and  other  cases 
where  the  infant  had  not  been  made  a  ward  of  chancery  by  suit. 
No  such  doubts  now  exist,  however ;  and  the  court  will,  on 
petition,  and  without  formal  proceedings  by  bill,  settle  a  due 
maintenance.2 

§  340.  Secular  and  Religious  Education  of  "Ward  by  Guar- 
dian. —  Courts  of  chancery  treat  the  guardian  as  the  proper 
judge  of  the  place  where  his  ward  shall  be  educated,  and  will,  if 
necessary,  issue  orders  to  compel  obedience.  But  if  guardians 
disagree  as  to  the  mode  of  their  ward's  education,  the  court  will 
exercise  its  own  discretion,  and  will  not  consider  itself  bound  by 
the  wishes  of  the  majority.3  Parol  evidence  of  the  deceased 
father's  wishes  is  admissible,  and  the  court  will  pay  attention  to 
such  wishes,  although  informally  expressed,  in  judging  of  the 
mode  of  education  of  children  as  well  as  in  the  appointing  of  a 
guardian.4 


Starkie,  .3  Sim.  339.  Chancery  will  con- 
trol the  discretion  of  trustees  as  to  allow- 
ance.  In  re  Hodges,  L.  11.  7  Ch.  D.  754. 

1  Macphers.  Inf.  213;  Livesey  v. 
Harding,  Taml.  460 ;  French  v.  David- 
son, 3  Madd.  396 ;  Collins  v.  Vining,  1 
C.  P.  Cooper,  472.  In  Mississippi  the 
sum  for  maintenance  and  education 
must  be  fixed  in  chancery.  Dalton  v. 
Jones,  51  Miss.  585.  But  as  to  per- 
sonal estate,  the  American  rule  is, 
usually,  that  if  the  court  would  have 
authorized  the  expenditure  upon  ap- 
plication before  it  was  made,  the  ex- 
penditure will  be  sanctioned  upon  set- 
tlement of  the  guardian's  accounts. 
Rinker  v.  Streit,  33  Gratt.  663. 

2  Story,  Eq.  Juris.  §  1354,  and  cases 
cited.  And  see  Kettletas  v.  Garduer, 
1  Paige,  4S8. 


Trustees  may  be  authorized  by  the 
terms  of  the  trust  to  expend  a  certain 
sum  for  maintenance  and  support  of 
children.  It  is  generally  understood 
that  the  expenses  of  education  are 
thus  included.  Breed's  Will,  1  Ch.  D. 
226.  Trustees  under  a  will  thus  au- 
thorized, and  in  effect  testamentary 
guardians,  are  not  compelled  to  pay 
over  such  moneys  to  a  statute  or  pro- 
bate guardian.  Capps  v.  Hickman,  97 
111.  429. 

3  Story,  Eq.  Juris.  §  1340 ;  Mac- 
phers. Inf.  121  ;  Tremain's  Case,  Stra. 
168  ;  Hall  v.  Hall,  3  Atk.  721. 

*  Anon.,  2  Ves.  Sen.  56 ;  Camp- 
bell v.  Mackay,  2  M.  &  C.  34  ;  contra, 
Storke  v.  Storke,  3  P.  Wms.  51. 


539 


§  S41  THE   DOMESTIC   RELATIONS.  [PART  IV. 

The  subject  of  a  child's  religious  education  received  much  con- 
sideration in  a  late  English  case,  where,  notwithstanding  the 
father's  directions  in  his  will  appointing  a  testamentary  guardian 
who  was,  like  himself,  a  Eoman  Catholic,  a  daughter  nine  years 
old  was  allowed  to  remain  with  her  mother,  a  Protestant,  and  to 
be  brought  up  in  the  same  religious  faith  ;  and  this  against  the 
guardian's  wishes,  tardily  expressed.  An  antenuptial  agree- 
ment, made  between  the  husband  and  wife,  stipulating  that 
boys  of  the  marriage  should  be  educated  in  the  religion  of  the 
father,  and  girls  in  that  of  the  mother,  was  indeed  declared  of 
no  binding  force  as  a  contract ;  and  yet  it  was  added  that  this 
agreement  would  have  weight  with  the  court  in  considering, 
after  the  father's  death,  whether  he  had  abandoned  his  right  to 
educate  this  daughter  in  his  own  religion.  The  welfare  of  the 
child  was,  under  the  circumstances,  deemed  a  very  important 
consideration.1  In  a  still  later  case  chancery  considered  that  it 
was  most  for  the  benefit  of  the  child  to  be  educated  as  a  Eoman 
Catholic.2  But  on  the  whole,  in  cases  of  doubt  the  English 
courts  incline  to  favor  Protestant  education  as  for  the  child's 
welfare.3 


CHAPTER   VI. 


RIGHTS   AND   DUTIES    OF   THE    GUARDIAN   AS   TO   THE 
WARD'S    ESTATE. 

§  341.  In  General  ;  Leading  Principles — We  have  seen  that 
chancery  guardians  have  only  a  limited  authority  over  the 
estates  of  their  wards,  inasmuch  as  the  court  makes  a  fixed  allow- 
ance, to  be  consumed  in  maintenance  and  education,  leaving  the 

1  Andrews  v.  Salt,  L.  R.  8  Ch.  622.  117;    supra,  Part  III.   c.  2,  where  the 

Bee  /•  r<    Newbery,   L.  K.  1  Ch.  203,  general  subject  of  a  child's  education 

where  the  deceased  father's  wishes  pre-  and  maintenance  is  discussed. 
vailed,  a     again  t  the  mother  and  the         2  Clarke  Re,  21   Ch.  1).   817.     See 

children,   bo   that    the   minor  children  also  Montagu  .Re,  28  Ch.  D.  82. 

i: ■.:    be   taken   to  worship  at  a         8  Violet  Nevin  Re,  [1891]  2 Ch.  299  j 

ehapel  of  the  "Plymouth    Brethren."  2  Ch.  4% ;  Scanlau  Re,  40  Ch.  1).  200. 
And  see   In  re  Agar-Ellis,  27  W.  It. 

540 


CHAP.  VI.]      EIGHTS   AND   DUTIES   OF   GUARDIANS.  §  342 

bulk  of  the  infant's  estate  in  the  hands  of  executors,  trustees,  or 
its  own  officers.  In  this  country  guardians  almost  invariably 
assume  the  full  management  of  their  wards'  fortunes,  unless 
restrained  by  the  will  of  the  testator;  and  whenever  they  do 
so  they  are  bound  by  the  principles  which  regulate  the  general 
conduct  of  all  trustees  and  bailees.  Ordinary  prudence,  care, 
and  diligence  should  be  therefore  the  correct  standard  as  applied 
wherever  the  trust  is  not  purely  gratuitous. 

The  leading  principle  recognized  by  chancery  in  supervising 
the  guardian's  conduct  is,  as  in  the  appointment  or  award  of 
custody,  that  the  ward's  interests  are  of  constant  consideration. 
Hence  two  observations  are  to  be  made  at  the  outset  of  this 
chapter.  The  first  is,  that  unauthorized  acts  of  the  guardian 
may  be  sanctioned  if  they  redound  to  the  ward's  benefit;  while, 
on  the  other  hand,  for  unauthorized  acts  by  which  the  ward's 
estate  suffers,  the  guardian  must  pay  the  penalty  of  his  impru- 
dence.1 The  second  is,  that  the  guardian's  trust  is  one  of  obli- 
gation and  duty,  and  not  of  speculation  and  profit.2  We  shall 
have  occasion  to  apply  these  observations  as  we  proceed. 

§  342.  Guardian's  General  Powers  and  Duties  as  to  Ward's 
Estate.  —  Among  the  most  obvious  powers  and  duties  of  the 
guardian  in  the  management  of  his  ward's  property  are  these : 
To  collect  all  dues  and  give  receipts  for  the  same.  To  procure 
such  legacies  and  distributive  shares  from  testators  or  others 
as  may  have  accrued.  To  take  and  hold  all  property  settled  upon 
the  ward  by  way  of  gift  or  purchase,  unless  some  trustee  is  inter- 
posed. To  collect  dividends  and  interest,  and  the  income  of 
personal  property  in  general.  To  receive  and  receipt  for  the 
rents  and  profits  of  real  estate.  To  receive  moneys  due  the 
ward  on  bond  and  mortgage.  To  pay  the  necessary  expenses  of 
the  ward's  personal  protection,  education,  and  support.  To  de- 
posit properly  and  invest  and  reinvest  all  balances  in  his  hands. 
To  sell  the  capital  of  the  ward's  property,  change  the  character 
of  investments  when  needful,  convert  real  into  personal  and  per- 
sonal into  real  estate,  in  a  suitable  exigency ;  but  not  without 
judicial  direction.    To  account  to  the  ward  or  his  legal  represen- 

1  Milner  v.  Lord  Harewood,  18  Ves.  Jr.  259  ;  Capehart  v.  Huey,  1  Hill,  Ch.  405. 
3  2  Kent,  Com.  229. 

541 


§  343  THE   DOMESTIC   RELATIONS.  [PART  IV. 

tatives  at  the  expiration  of  his  trust.  And,  in  general,  especially 
if  recompensed,  to  exercise  the  same  prudence  and  foresight 
which  a  good  business  man  would  use  in  the  management  of  his 
own  fortunes,  though  under  more  guarded  restraints.1 

§  343.  Right  to  sue  and  arbitrate  as  to  Ward's  Estate.  —  The 
right  to  collect  a  debt  implies  the  right  to  sue.  Hence  the  guar- 
dian may,  in  the  exercise  of  good  discretion,  and  acting,  if  need 
be,  under  competent  legal  advice,  institute  suits  to  recover  the 
ward's  property.2  And  this  right  extends  to  property  fraudu- 
lently obtained  from  the  ward  before  the  guardian's  appoint- 
ment.3 But  he  must  sue  in  general  in  the  name  of  his  ward 
(except  under  qualifications  to  be  noticed),  and  not  in  his  own 
name.4  And  if  he  iustitutes  groundless  and  speculative  suits, 
and  is  unsuccessful,  or  occasions  a  controversy  over  his  accounts 
through  his  own  fault,  he  must  bear  the  loss.  So,  too,  whenever 
his  conduct  shows  fraud  or  heedless  imprudence.5  Otherwise, 
he  is  entitled  to  his  costs  and  legal  expenses  out  of  the  ward's 
estate.6  The  rule  in  many  States  now  is  that  the  guardian  sues 
and  is  to  be  sued  upon  his  own  express  contract  touching  the 
ward's  estate,  notwithstanding  that  an  action  in  general  con- 
cerning the  estate  of  a  minor  must  be  brought  by  or  against  the 
minor,  who  is  represented  by  his  guardian.  And  in  various 
instances  the  guardian  may  appear  and  make  defence  for  the 
ward  ;  though  in  some  States  the  older  rule  of  the  English 
chancery  is  followed,  which  required  a  guardian  ad  litem  to 
make  defence,   the  infant  being  the   party  sued.7     In  defend- 

1  Genet  v.  Tallmadge,  1   Johns.  Oh.  Hillings  v.  Bumgardner,  9  Gratt.  273  ; 

3;    Jackson    '•.   Scars,    10   Johns.   435;  Vincent  v.  Starks,  45  AVis.  458. 

Eichelberger's    Appeal,   4    Watts,   84  ;  5  Brown  v.  Brown,  5   E.  L.  &  Eq. 

Swan    >■■   Dent,   2   Md.  Ch.  Ill;  Cren-  567;  Savage  v.  Dickson,  16  Ala.  257; 

F»haw   v.  Crenshaw,   4    Rich.    Eq.    14;  Blake  v.  l'egram,  109  Mass.  541  ;  Spel- 

Chapman  v.  Tibbits,  33  X.  Y.  289.   One  man  v.  Terry,  74  X.  Y.  448. 

wlio  is  liable  as  a  debtor  to  the  ward  is  c  Re  Flinn,  .31  X.  J.  Eq.  640. 

n<.t  entitled,  when  sued,  to  question  the  7  Taylor  v.   Kilgore,  33  Ala.  214;  1 

validity  of  the  guardian's  appointment,  Foster  (X.  H.),  204.     In   Louisiana  no 

not  even  though  he  be  a  co-heir.    John-  suit  can  be  prosecuted  by  or  for  an  in- 

bod  v,  Blair,  1l"'>  Penn.  Si.  426.  sane  person  or  minor   except  through 

-  Smith    r.  Bean,  8    N.  II.  15;  Ship-  a  curator    or    tutor.      35  La.    Ann.  23. 

herd  <•   Evans,  9  Ind.  260;  Southwest-  Among  the  cases  in  which  the  guardian 

en,  R,  v.  Chapman,  46  Ga,  557.  has    been    allowed    to   sue  in  his   own 

'■'■  Somes  o.  Skinner,  16  Mass.  348.  name  are  the  following :    For  non-pay* 

1  I. "i.     treel    v.   Tilton,    Coxe,  38;  mentofrent.    Fond  v.  Curtiss,  7  Wend. 

542 


CHAP.  VI.]      EIGHTS   AND   DUTIES   OF   GUARDIANS.  §  343 


ing,  as  in  bringing  suits,  and  incurring  costs  and  counsel  fees,  the 
rule  is  that  the  guardian  should  not  wilfully  or  recklessly  litigate 


45.  For  trespass  on  his  ward's  lauds. 
Truss  v.  Old,  6  Rand.  556 ;  Bacou  v. 
Taylor,  Kirby,  368.  For  intermeddling 
with  the  issues  and  profits  thereof. 
Beecher  v.  Crouse,  19  Weud.  306.  For 
an  injury  to  any  property  of  the  ward 
in  his  actual  possession.  Fuqua  v. 
Hunt,  1  Ala.  197.  Or  where  he  has 
the  right  of  possession.  Sutherland  v. 
Goff,  5  Porter,  508;  Field  v.  Lucas,  21 
Ga.  447.  Or  on  a  note  payable  to  him- 
self as  guardian,  though  given  for  a 
debt  due  to  the  ward.  Jolliffe  v.  Ilig- 
gins,  6  Munf.  3  ;  Baker  v.  Ormsby,  4 
Scam.  325;  Thacher  v.  Diusmore,  5 
Mass.  299;  Hightower  v.  Maull,  50  Ala. 
495.  Or,  as  it  would  appear,  on  his 
express  contract  touching  the  ward's 
estate.  Thomas  v.  Bennett,  56  Barb. 
197.  As  to  statute  provisions,  see  41 
Ark.  254.  As  to  amending  the  writ, 
see  Weber  v.  Hannibal,  83  Mo.  262.  As 
to  power  of  the  general  guardian  of  an 
insane  person,  unlike  an  infant's  guar- 
dian ad  litem,  to  waive  objections  to  the 
admission  of  testimony,  see  81  Mo.  275. 
But  debts  and  demands  of  the  ward 
should  in  general  be  prosecuted  in  the 
ward's  name.  And  the  guardian  can- 
not sue  in  his  own  name,  after  his  fe- 
male ward's  marriage,  for  a  debt  due 
her  before  such  marriage.  Barnet  v. 
Commonwealth,  4  J.  J.  Marsh.  389. 
Nor  on  a  promise  to  the  guardians  of 
the  minor  children  of  A.  B. ;  for  this  is 
a  promise  to  the  wards.  Carskaddeu 
v.  McGhee,  7  Watts  &  Serg.  140.  Nor 
on  an  award,  although  he  had  sub- 
mitted to  arbitration.  Hutchins  v. 
.Johnson,  12  Conn.  376.  Nor  where  a 
statute  authorizes  guardians  to  "  de- 
mand, sue  for,  and  receive  all  debts 
due"  their  wards.  Hutchins  v.  Dresser, 
26  Me.  76.  And  see  Hoare  v.  Harris, 
11  111.  24;  Fox  v.  Minor,  32  Cal.  111. 
He  cannot  act  on  a  petition  for  parti- 
tion. Stratton's  Case,  1  Johns.  509 ; 
Totten's  Appeal,  46  Penn.  St.  301.  Nor 
subscribe  a  libel  for  divorce.  Winslow 
v.  Winslow,  7  Mass.  96.     Nor  bring  a 


bill  in  ecpiity  in  his  own  name  touching 
the  ward's  transactions.  Lombard  v. 
Morse,  155  Mass.  136.  He  is  some- 
times authorized  by  statute,  however, 
to  sue  in  his  own  name  for  the  use  of 
the  ward.  Fuqua  v.  Hunt,  1  Ala.  197  ; 
Longmire  v.  Pilkington,  37  Ala.  296; 
Mebaue  v.  Mebaue,  66  N.  C.  334.  And 
see  Anderson  v.  Watson,  3  Met.  (Ky.) 
509  ;  Hines  v.  Mullins,  25  Ga.  696.  A 
guardian  in  Georgia  must  be  party 
in  an  action  to  recover  a  legacy  be- 
queathed to  his  deceased  ward.  Bea- 
vers v.  Brewster,  62  Ga.  574.  Guardian 
for  minor  heirs  allowed,  in  Texas,  to 
sue  on  a  promissory  note  payable  to 
the  ancestor,  on  showing  that  they  are 
the  only  heirs,  and  that  there  has  been 
no  administration.  Roberts  r.  Sacra,  38 
Tex.  580.  Sed  qu.  For  unlawful  de- 
tainer, and  semble  in  all  suits  by  guar- 
dian for  the  benefit  of  the  ward,  the 
action  should  be  entitled  in  the  ward's 
name  b\j  guardian.  Vincent  v.  Starks, 
45  Wis.  458.  A  general  guardian  may 
sue  in  his  own  name  to  recover  an  in- 
fant's distributive  share ;  and  separate 
suits  where  there  are  several  infants  so 
entitled.  Haueustein  v.  Kull,  59  How. 
Pr.  24.  Cf.  Jordan  v.  Donahue,  12  R.I. 
199,  and  cases  cited.  Aud  see  Ankeny 
v.  Blackiston,  7  Or.  407.  As  to  pro- 
cedure in  West  Virginia,  see  Burdett  v. 
Cain,  8  W.  Va.  282.  In  Illinois  the 
probate  or  statute  guardian  cannot 
bring  suits  in  relation  to  his  ward's 
real  estate,  such  as  ejectment.  Muller 
v.  Beuner,  69  111.  108.  An  action  upon 
an  express  contract  made  by  a  guar- 
dian for  his  ward's  benefit  may  be 
brought  by  or  against  the  guardian 
personally.  McKinney  v.  Jones,  55 
Wis.  39. 

Payment  by  the  debtor  to  an  unau- 
thorized person  cannot  avail  in  defence 
against  the  guardian's  suit;  but  as  to 
the  defence  of  payment  to  the  natural 
guardian,  cf.  supra,  §  255  ;  also  South- 
western R.  v.  Chapman,  46  Ga.  557. 

The  right  of  action  upon  a  note  pay- 

543 


3-13 


THE  DOMESTIC   RELATIONS. 


[PART   IV. 


over  his  ward's  interests,  but  should  apply  ordinary  prudence  and 
discretion  in  considering  the  probable  benefits  of  such  a  course.1 
A  guardian  is  now  generally  permitted  to  submit  to  a  fair 
arbitration  questions  and  controversies  respecting  the  property 
aud  interests  of  his  ward,  and  the  award  made  in  pursuance 
thereof  is  binding  on  all  parties.2  So  lie  may  compromise  when 
acting  in  good  faith  and  with  sound  discretion  for  the  benefit  of 
his  ward.  Local  statutes  are  found  in  aid  of  this  right.  But  on 
general  principle  the  guardian's  compromise  and  allowance  of  a 
baseless  and  unjust  claim  would  not  be  upheld  in  equity  as 
against  the  ward,3  nor  any  arbitration  which  did  not  properly 
guard  the  ward's  interests.4     An  infant  cannot,  in  any  event, 

able  to  a   guardian  for  money  of  the  against   a   guardian    upon   the   ward's 

ward  passes,  upon  the  guardian's  death,  contracts  or  debts ;  but  suit  should  be 

to  his  personal    representative.      Chit-  against  the  ward,  who  may  defend  by 

wood  v.  Cromwell,  1 2  Heisk.  658.     And  guardian.      Brown    v.    Chase,  4  Mass. 

so  in  general  where  he  might,  if  alive,  439;  Willard  v.  Fairbanks,  8  R.  I.  1. 

have  sued  in  his  own  name.     lb.  In  dower  and  partition   proceedings  a 

A  guardian  is  to  be  sued  in  person  guardian  may  appear  for  the  ward,  like 

upon    notes    executed    by  him    in    his  any  guardian  ad  litem,  in  some  States, 

official  capacity.     See  1   Pars.   Bills  &  Rankin    v.    Kemp,    21    Ohio    St.    651  ; 

Notes,  89,  90;  Thacher  v.  Diusmore,  5  Cowan  v.  Anderson,  7  Cold.  284;  Miller 

Mass.  299  ;  §  345.  v.  Smith,  98  Ind.  226  ;    State  v.  Cayce, 

A  guardian  is  not  liable  in  assumpsit  85  Mo.  456.     In  Massachusetts  a  ward's 

for  necessaries.     Cole  v.  Eaton,  8  Cush.  money  may  be  reached  by  trustee  pro- 

587.     Nor  for  labor  performed  on  the  cess  against  him  or  taken  on  execution, 

ward's  buildings.     Robinson  v.  Hersey,  Simmons  v.  Almy,  100  Mass.  239.     In  a 

60  Me.  225.     But  he  may  be  sued  upon  suit  against  A.  B.  the  words  "  as   he  is 

his  own  contract   touching    his  ward's  guardian,"  &c,  may  be  rejected  as  sur- 

estate.      Stevenson   v.   Bruce,  10   Ind.  plusage.  Rollins i\Marsh,128 Mass.  116. 


397.  And  judgment  should  then  be 
against  him  personally,  and  not  against 
the  ward,  (lark  v.  Casler,  1  Cart.  (Ind.) 
'_'4-'i.  Where  the  judgment  is  to  hind 
the  ward's  property,  suit  should  lie 
against  the  ward.  Otherwise  the  prop- 
erty of  the  guardian  must  be  levied 
upon,  who  v.  ill  look  to  the  infant's  es- 
tate fur  his  own  reimbursement.  Tobin 
v.  Addison,  2  Strobh.  3;  Clark  v.  Cas- 
ler, 1  Smith  (Ind.),  150.  And  sec  Ray- 
mond v.  Sawyer,  37  Me.  406;  68  Iowa, 
\si.  As  to  conclusiveness  of  judg- 
ments, see  Morris  r.  Garrison,  27  Penn. 


Guardian  and  insane  ward  cannot  he 
sued  jointly  to  recover  a  debt  which 
the  ward  incurred  previous  to  the  guar- 
dian's appointment.  Allen  v.  Hoppin, 
9  R.  I.  258. 

l  Kingsbury  v.  Powers,  131  111.  182; 
113  N.  C.  103;'  §  352. 

-  Weed  v.  Ellis,  3  Caines,  253;  Wes- 
ton !'.  Stewart,  11  Me.  326  ;  Hutchins 
t>.  Johnson,  12  Conn.  376  ;  Golemau  v. 
Turner,  14  S.  &  M.  118;  Strong  v. 
Beroujon,  18  Ala.  168. 

:i  (Jnderwood  v.  Brockman,  4  Dana, 
309.     Nor,  as  it  would  soein,  against  the 


!6,     Judgment  against  a  person  as  guardian   himself,  no  blame   attaching 

"guardian"  is  a  judgment  against  him  to  him. 

tally,  the  additional  words  being         4  82  Ga.  687. 
ttive    merely.      No    action    lies 

544 


CHAP.  VI.]      RIGHTS   AND   DUTIES   OF   GUARDIANS.  §  344 

be  bound  by  the  fraudulent  compromise  of  his  guardian  ;  *  though 
he  would  be  commonly  by  a  compromise  made  in  good  faith, 
apparently  in  the  ward's  interest  at  the  time,  and  with  reason- 
able prudence.2  On  the  same  general  principles,  and  with  like 
limitations,  the  guardian  may  release  a  debt  due  his  ward,  or  a 
cause  of  action  for  damages.3  The  same  rule  as  to  compounding 
and  releasing  debts  appears  to  prevail  in  England  as  in  this 
country ;  and  it  applies  to  all  trustees  alike.4  The  original  doc- 
trine apart  from  statute  seems  to  be  this :  that  he  cannot  bind 
his  ward  by  arbitration  unless  the  court  shall  previously  author- 
ize him  to  do  so,  or  subsequently  approve,  on  the  ground  that  it  was 
for  the  ward's  benefit.5  And  in  considering  what  is  beneficial 
and  binding  as  to  a  minor  ward,  the  usual  analogies  applicable 
to  infants  have  considerable  application.6 

§  344.  Whether  Guardian  can  bind  Ward's  Estate  by  his  Con- 
tracts. —  A  guardian,  it  is  said,  cannot  by  his  general  contracts 
bind  the  person  or  estate  of  his  ward.7  Nor  can  he  avoid  a 
beneficial  contract  made  by  his  infant  ward.8  Nor  waive  a 
benefit  to  which  the  ward  is  entitled  by  decree.9  For  anything 
which  he  does  injurious  to  the  infant  is  a  violation  of  duty,  and 
the  insertion,  in  a  contract,  of  words  importing  the  title  "  guar- 
dian "  will  not  shield  the  guardian  from  personal  liability.  In 
the  language  of  Chief  Justice  Parsons  :  "  As  an  administrator 

i  Lunday  v.  Thomas,  26  Ga.  537.  4  Blue  v.  Marshall,  .3  P.  Wms.  381. 

2  Ordinary  v.  Dean,  44  N.  J.  64.  5  The  tutor  of  an  infant  cannot  con- 
Compromise  or  release  under  the  sane-  fess  judgment  or  revive  a  debt  which 
tiou  of  the  court  having  jurisdiction  of  is  prescribed.  Clement  v.  Sigur,  29 
the  guardianship  is  allowed  under  some  La.  Ann.  798;  31  La.  Ann.  389.  A 
codes,  and  the  guardian  who  obtains  it  guardian  cannot  release  the  ward's 
is  more  amply  protected  than  where  he  rights  in  real  estate,  irrespective,  of 
acts  on  his  own  responsibility.  See  statutory  power.  Pond  v.  Hopkins, 
Hagy  v.  Avery,  69  Iowa,  434,  as  to  ex-  154  Mass.  38;  Fowler  v.  Lewis,  36  W. 
ecuting  a  quitclaim  deed  for  land  in  Va.  112.  It  is  the  guardian,  and  not 
litigation  under  the  court's  direction,  the  ward,  who  becomes  thus  liable  to 
And  see  compromise  upheld,  under  stat-  counsel  for  their  fees  when  he  engages. 
ute,  even  though  the  ward's  estate   be  89  Cal.  636. 

charged   thereby   with   new  liabilities.  6  Part  V.  cs.  2  &  3. 

Smith  v.  Angell,  14  R.  I.  192.  "  Jones  v.  Brewer,  1  Pick.  317 ;  Ten- 

3  Torry  v.  Black,  58  N.  Y.  158.     An  ney  v.  Evans,  14  N.  II.  343. 
assumption    of    another's   debt   on  the  8  Oliver  v.   Houdlet,  13  Mass.  237,. 
ward's  behalf  ought  to  be  shown  to  be  And  see  Bac.  Abr.  Guardian  (G). 

for  the  ward's  apparent  interest  at  the  9  Hite  v.  Hite,  2  Rand.  409. 

time.     17  Col.  481. 

35  545 


§  344  THE   DOMESTIC   RELATIONS.  [PAIIT   IV. 

cannot  by  his  promise  bind  the  estate  of  the  intestate,  so  neither 
can  the  guardian  by  his  contract  bind  the  person  or  estate  of 
his  ward."  1  But  the  rule  is,  after  all,  a  technical  one ;  for  the 
insertion  of  words  showing  representative  capacity  imports  that 
the  contract  was  made  as  a  trustee ;  the  form  of  the  remedy  is 
affected,  but  not  the  primary  source  of  liability  in  the  real  bene- 
ficiary. And  on  all  such  contracts,  fairly  made,  the  guardian  is 
entitled  to  reimbursement  from  his  ward's  estate.  It  is  simply 
meant  that  the  person  with  whom  the  guardian  contracts  on  be- 
half of  his  ward  may  presume  a  sufficiency  of  assets.  In  other 
words,  the  guardian's  duty  is  to  bring  up  the  ward  suitably ;  and 
if  in  the  performance  of  his  duty  it  becomes  necessary  for  him 
to  enter  into  contracts,  they  impose  no  duty  on  the  ward,  but 
bind  the  guardian  personally  and  alone.  If  one  acting  in  a  trust 
capacity  could  claim  exemption  from  all  personal  liability,  on 
the  ground  that  there  was  none  of  the  ward's  property  left  in 
his  hands  for  payment,  he  might  abuse  his  privileges.  His 
knowledge  of  the  exact  state  of  the  trust  fund  and  his  power  of 
management  would  give  him  an  immense  advantage  over  the 
other  contracting  party.  Hence  the  propriety  of  the  rule  that 
guardians  are  personally  bound  on  their  contracts,  in  dealing 
with  others  on  the  ward's  behalf,  while  in  turn  they  get  a  recom- 
pense from  the  estate  by  charging  their  expenses  to  the  ward's 
account,  to  be  passed  upon  by  the  court ;  in  which  sense  of  a 
reimbursement  alone,  whether  in  law  or  equity,  can  it  be  said 
that  the  ward  is  liable,  since  the  guardian  can  put  no  contract 
obligations  upon  his  ward.  The  insertion  of  words  implying  a 
trust  becomes,  therefore,  essential  in  determining  whether  a  con- 
tract was  intentionally  made  by  the  guardian  on  his  own  personal 
account.  If  the  guardian  contracts  a  debt  for  his  ward's  benefit, 
he  becomes,  in  this  sense,  personally  liable;  and  this,  even 
though  the  debt  be  for  necessaries.2     Where,  however,  the  guar- 

1   Forster  v.  Fuller,  6  Mass.  58.  for  terminating  it  properly.     In  Mass. 

-  simms  v.  Norris,  5  Ala.  4J  ;  Etol-  General    Hospital    v.    Fairbanks,    182 

line  v.  Marsh,  128  Mas-.  166.     And  see  Mass.  414,    A.,  in  anticipation  of  be- 

supra,  >;$    337,  838,   as  to  the  ward's  ing  appointed  guardian  of  B.,  an  in- 

Sperrj  p.  Fanning,  80  111.  sane  person,  promised  to  pay  an  asylum 

871.     A  guardian    Bhould   take    heed  for  B.'b  board   and  supplies.     It  was 

what  contracl    be  makes,  and    provide  held  that  though    A.    resigned    after 

546 


CHAP.  VI.]       RIGHTS    AND   DUTIES   OF   GUARDIANS.  §  345 

dian's  contract  with  the  creditor  shows  an  express  limitation  of 
his  liability,  by  mutual  assent,  to  the  assets  of  the  ward  in  the 
guardian's  hands,  it  would  appear  that  the  guardian  incurs  no 
personal  liability  beyond  such  assets,1  though  he  cannot  thereby 
bind  the  ward's  person  or  estate  absolutely.2 

§  345.  Title  to  Promissory  Notes,  &c. ;  Promise  not  Collateral. 
—  The  title  to  promissory  notes  made  payable  to  the  guardian 
is  prima  facie  in  him.  And  this  is  true  though  the  ward  come 
of  age  pending  a  suit  on  such  notes,  or  otherwise  the  guardian's 
authority  has  ceased.  Hence  he  may  maintain  suit,  unless  the 
defendant  can  show  that  it  has  been  transferred  to  the  successor, 
or  otherwise  disprove  title.3  The  guardian  may,  however,  in- 
dorse over  such  note  on  the  cessation  of  his  authority  ;  in  which 
case  the  person  in  lawful  possession  should  sue.  He  may  thus 
assign  over  a  mortgage  note  after  the  ward's  majority  for  money 
clue  the  ward,  and  give  the  assignee  full  power  to  collect,  where 
the  ward  interposes  no  valid  objection.4  So,  too,  he  may,  after 
his  ward's  death,  transfer  a  note  for  the  ward's  money,  payable 
to  the  ward  or  bearer,  to  a  third  person  for  collection.5  But  a 
note  which  evidences  a  debt  due  the  guardian  in  his  own  in- 
dividual capacity  is  not  properly  a  part  of  the  ward's  assets ; 
and  a  successor  in  the  trust  who  accepts  such  a  note  from  his 
predecessor  is  held  liable  as  for  a  breach  of  his  trust  where  the 
note  proves  uncollectible.6  If  the  guardian  settles  with  his 
ward  whatever  was  due  on  a  note  taken  by  him  he  may  enforce 
payment  for  his  own  benefit.7 

The  promise  of  a  guardian  to  pay  his  ward's  debts  is  not  col- 
lateral, within  the  statute  of  frauds ;  and  therefore  it  need  not 
be  expressed  in  writing.8     And  where  a  guardian,  on  surrender- 

his  appointment   and   a  new  guardian  2  "Rollins  v.  Marsh,  128  Mass.  116; 

was  appointed,  A.  s  personal  liability  Reading  v.  Wilson,  38  N.  J.  Eq.  446. 

under  the  contract   had  not  been  ter-  3  Chambles  v.  Vick,  34  Miss.   109; 

minated.    If  a  guardian  promises  to  pay  Fountain    v.   Anderson,    33    Ga.   372  ; 

a  debt  of  his  ward,  he  will  become  per-  King   v.  Seals,  45   Ala.  415;   Gard   v. 

sonally  bound,  though  expressly   con-  Neff,  39  Ohio  St.  607. 

trading  as  guardian  ;  and  the  creditor's  4  Hippee  v.  Pond,  77  Iowa,  235. 

discharge  of  the  ward  is  sufficient  con-  5  Fletcher  v.  Fletcher,  29  Vt.  98. 

sideration.     Kingsbury  v.  Powers,  131  6  State  v.  Greensdale,  106  Ind.  364, 

111.  182.  and  cases  cited. 

1  Sperry  v.  Fanning,  80  111.  371.  7  Wright  v.  Robinson,  94  Ala.  479. 

8  Roche  v.  Chaplin,    1   Bailev,  419. 

547 


§  347  THE   DOMESTIC    RELATIONS.  [PART  IV. 

iug  his  trust,  transfers  to  his  successor  a  debt  due  the  ward,  this 
is  sufficient  consideration  to  support  the  promise  of  the  latter  to 
pay  the  former  guardian's  debt.1 

§  346.  Guardian's  Employment  of  Agents.  —  Under  suitable 
circumstances  a  guardian  may  employ  attorney s-at-law  or  other 
agents,  and  charge  their  compensation  in  his  accounts.2 

§  347.  Changes  in  Character  of  Ward's  Property  ;  Sales,  Ex- 
changes, &c.  —  Conversions  —  that  is  to  say,  changes  made  in  the 
character  of  trust  property,  from  personal  into  real,  or  real  into 
personal  estate  —  are  never  favored,  especially  where  the  natural 
consequence  would  be  to  vary  rights  of  inheritance.  The  pre- 
vious sanction  of  chancery  should  always  be  sought ;  and  this 
is  only  given  under  strong  circumstances  of  propriety.  As  a 
rule  the  guardian  may  not  convert  his  ward's  personal  estate 
into  real  estate  without  the  previous  sanction  of  chancery,  nor 
may  the  vendor  enforce  a  lien.3  The  same  may  be  said  with 
less  force  of  exchanges  of  the  ward's  property.  Courts  are 
reluctant  to  disturb  the  property  of  those  who  are  only  tem- 
porarily disabled  from  assuming  full  control.  Sales  of  real 
estate  are  in  general  only  partial,  and  fur  necessary  purposes. 
But  sales  and  exchanges  of  personal  estate  are  very  common. 
And  the  guardian  may  sell  personal  estate  for  the  purposes  of 
the  trust  without  a  previous  order  of  court,  provided  he  acts 
fairly  and  with  good  judgment;  though  his  safer  course  is  to 
obtain  permission.  But  sales  of  the  real  estate  of  the  ward 
would  be  extremely  perilous,  if  not  absolutely  void,  unless 
previous  authority  had  been  obtained.  Undoubtedly,  they  could 
not  bind  the  ward  under  such  circumstances.  Nor  is  the  guar- 
dian permitted  to  sell  first  and  obtain  judicial  sanction  after- 
wards. Nor  to  contract  to  sell  at  his  own  instance.4  So  the 
guardian  must  not  buy  land  with  the  infant's  money  without 

1   French  v.  Thompson,  6  Vt.  54 ;  cf.  powers.     Taylor  v.  Bemiss,  110  U.  S. 

47  Ala.  329.  42.    That  an  employed  attorney  must 

-  Re  I  linn,   31  N\  J.  Eq.  640;  supra,  look  to  the  guardian  for  liis  compen- 

§  343.     A    oatnral   tutrix   of  minors,  sation,  see  5  Dem.  56. 
duly  appointed,  is  bound  to  prosecute         ,!  Boisseau  i\  Boisseau,  70  Va.  73. 
a  legal  claim  on  their  behalf,  and  her         4  Thacker  v.  Henderson,   69   liarb 

contract  with  counsel  concerning  com-  271;  next  chapter. 
pei         n    Eor   len  ice    is     within   her 
548 


CHAP.  VI.]      RIGHTS   AND   DUTIES   OF   GUARDIANS.   •         §  347 

the  direction  of  chancery.  And  having  obtained  permission  to 
do  so,  he  is  bound  to  exercise  good  faith  and  seek  his  ward's 
best  interests.1 

But  a  practical  conversion  takes  place  where  the  guardian 
uses  the  trust  money  in  paying  off  the  ward's  mortgage  debts. 
He  is  bound  to  apply  rents  and  profits  in  keeping  down  the 
interest  on  such  encumbrances ;  nor  can  he,  in  general,  invest 
personal  estate  more  judiciously  than  in  freeing  the  land  from 
debt  altogether.2  An  order  of  court  is  not  necessary  in  such 
cases,  nor  for  judgment  debts,  but  it  would  be  recpuired  for  dis- 
charging other  than  direct  encumbrances.3  So,  too,  a  guardian 
may  redeem  his  ward's  estate  from  foreclosure.4  The  statutes 
of  most  American  States  have  greatly  altered  the  law  on  the 
subject  of  conversions,  so  as  not  only  to  facilitate  the  sale  of 
real  estate  belonging  to  cestuis  que  trust,  but  to  enable  their 
fiduciaries,  under  judicial  authority,  to  make  specific  perform- 
ance of  contracts  and  to  release  vested  and  contingent  interests.5 

Where,  at  the  time  the  court  orders  the  sale  or  purchase  of 
real  estate  by  the  guardian,  the  conversion  was  beneficial  to  the 
ward,  it  would  appear  that  the  guardian  is  not  made  liable  if 
such  conversion  afterwards  turns  out  injurious.6  But  whether  an 
order  of  court  would  protect  conduct  notoriously  imprudent,  as 
if  there  should  be  a  sudden  and  marked  decline  in  the  value  of 
the  land  from  some  cause  not  within  the  consideration  of  the 
court  at  the  time  of  issuing  the  order,  and  such  as  would  have 


1  Macphers.  Iuf.  278  el  seq. ;  2  Kent,  3  Palmes  v.  Danby,  Prec.  in  Ch.  137  ; 
Com.  228-230,  and  uotes;  Story,  Eq.  s.  c.  1  Eq.  Ab.  261;  Waters  v.  EbraL, 
Juris.  §  1357  ;  3  P.  Wms.  101  ;  Ex  parte  2  Vern.  606. 

Phillips,  19  Ves.  122  ;  Skelton  v.  Ordi-  4  Botham  v.  M'Intier,  19  Pick.  346; 

nary,  32  Ga.  266;  Ware  v.  Polhill,  II  Marvin    v.    Schilling,    12    Mich.    356. 

Ves.    278 ;     Holbrook    v.    Brooks,    33  But  see  Sheahan  v.  Wayne,  42   Mich. 

Conn.  347;  Hover's  Appeal,  11    Penn.  69. 

St.  36  ;  Woods   v.   Boots,  60  Mo.  546  ;  5  See  next  chapter.     It   may  be  in- 

Ex   parte     Crutchfield,  3    Yerg.    336  ;  cumbent  upon  a  guardian  by  virtue  of 

Dorr,    Petitioner,    Walker,    Eq.    145  ;  bis  trust  to  sell  land  or  foreclose,  under 

Kendall    v.   Miller,    9    Cal.    591.     See  a  mortgage  which  he  holds  as  an  in- 

Harris  v.  Harris,  6  Gill  &  Johns.  Ill  ;  vestment  for  his  ward,  in  which  case 

Davis's  Appeal,  60  Penn.  St.  118.  the  usual  rules    of   trusteeship   apply. 

2  Macphers.  Inf.  285;  March  v.  Ben-  Taylor  v.  Hite,  61  Mo.  142. 

nett,  1   Vern.  428;  Jennings  v.  Looks,  6  Bonsall's  Case,  1  Kawle,  266. 

2  P.  Wms.  278. 

549 


§  348  THE   DOMESTIC    RELATIONS.  [PART  IV. 

been  sufficient  for  its  revocation,  and  the  guardian,  neverthe- 
less, goes  on  and  makes  the  sale  at  a  sacrifice,  may  well  be 
doubted.1 

"Where  a  guardian  purchases,  on  behalf  of  his  ward,  a  house 
and  lot  expressly  subject  to  a  mortgage,  he  becomes  personally 
liable  for  the  amount  of  the  unpaid  debt ;  even  though  he  had 
been  authorized  by  the  court  to  make  the  purchase.  But  the 
court  will  afford  him  relief  from  the  ward's  estate.2  In  an  Eng- 
lish case,  where  a  guardian  borrowed  money  to  pay  off  encum- 
brances on  the  ward's  estate  and  promised  to  give  the  lender 
security,  but  died  before  doing  so,  the  court  refused  to  decree 
specific  performance ;  though  the  lender's  money  had  been  duly 
applied  for  that  purpose.3  Here,  however,  there  had  been  no 
written  contract.4 

§  348.  Limit  of  Guardian's  Responsibility  in  Management.  — 
It  is  a  general  principle  that  acts  done  by  a  guardian  without 
authority  will  be  protected  and  will  bind  the  infant,  if  they 
turn  out  eventually  beneficial  to  the  latter ;  but  the  guardian 
does  such  acts  at  his  own  peril.  The  transaction  will  perhaps 
avail  as  between  the  guardian  and  third  parties;  but  the  infant, 
on  arriving  at  majority,  may  usually  disaffirm  it  altogether,  if 
not  manifestly  beneficial  in  the  court's  opinion,  and  require  the 
guardian  to  place  him  in  statu  quo.b  This  risk  is  restricted, 
however,  to  unauthorized  as  well  as  prejudicial  acts ;  for  no 
guardian  can  be  an  infallible  judge  of  what  is  beneficial  to  his 
ward  ;  and  to  make  him  liable  in  ordinary  cases,  beyond  the 
limits  of  good  faith  and  a  sound  discretion,  would  be  intolerable. 
Hence,  as  judicial  control  becomes  relaxed,  the  guardian's  un- 
authorized acts  may  fairly  be  considered  as  lessening  in  number 
and  importance,  save  so  far  as  local  statutes  prescribe  the  rule, 
as  they  frequently  do.  Where  the  guardian  acts  under  judicial 
:  anction,  what  he  does  in  good  faith  receives  strong  protection,6 


1  See  Harding  v.  Lamed,  4  Allen,  for  land,  where  the  title  vested  prior 
41_m;.  to  the  guardianship,  wee  McCall  v.  Flip- 
s' Woodward's  Appeal,  38  Penn.  St.  pin,  58  Tenn.  161. 
:i2i' ,  Low  v.  Purdy,  i'  Lans,  422.  6  Macphers.  Inf.  839;  infra,  §  885 
;;  Hooperi/.  Eyles,  2  Vera..  180.  8  Sou  McElheny  v.  Musick,  G.3  111 
*  Ah  to  applying  money  in  payment  .'tii'.). 

550 


CHAP.  VI.]      EIGHTS   AND   DUTIES   OF   GUARDIANS.  §  348 

and  even  without  a  judicial  sanction  he  may  do  many  acts  beneficial 
to  his  ward  in  their  scope.1  The  guardian  is  bound  for  ordinary 
diligence  if  compensated,  and  for  slight  diligence  at  all  events, 
on  the  usual  footing  of  a  bailee  of  property. 

It  is  to  be  observed,  however,  that  chancery  not  only  punishes 
corruption,  but  treats  with  suspicion  all  acts  and  circumstances 
evincing  a  disposition  on  the  guardian's  part  to  derive  undue 
advantage  from  his  position.  This  rule  is  applicable  to  trustees 
in  general.  The  trust  should  be  managed  exclusively  in  the 
interest  of  the  cestui  que  trust ;  or,  in  case  of  guardianship,  for 
the  ward's  benefit.  The  guardian  cannot  reap  any  benefit  from 
the  use  of  the  ward's  money.  He  cannot  act  for  his  own  bene- 
fit in  any  contract  or  purchase  or  sale  as  to  the  subject  of  the 
trust.  If  he  purchases  in  his  character  as  guardian,  he  pre- 
sumptively uses  his  ward's  funds  for  that  purpose.  If  he 
settles  a  debt  upon  beneficial  terms,  or  purchases  it  at  a  dis- 
count, the  advantage  is  to  accrue  entirely  to  the  ward's  estate.3 
He  cannot  be  permitted  to  place  himself  in  an  attitude  of  hos- 
tility to  his  ward,  or  derive  any  benefit  from  the  latter's  loss.3 
Wherever  he  abuses  the  confidence  imposed  in  him,  he  will  be 
held  to  a  strict  accountability.4  Where  the  guardian  purchases 
for  himself  at  sales  of  his  ward's  property,  his  conduct  will  be 
closely  scrutinized.  But  where  no  fraud  appears,  and  the  sale 
appears  beneficial  to  the  ward,  the  more  reasonable  doctrine  is 
that  the  transaction  is    sustainable  in   equity,  subject   to  the 

1  Maclay  v.  Equitable  Co.,  152  U.  S.  4  Asa  guardian  must  not  reap  un- 
499  ;  Albert's  Appeal,  128  Peuu.  St.  due  benefit,  he  cannot  make  a  collusive 
613;  144  Penn.  St.  293.  sale  or  improve   the   property  for   bis 

2  White  v.  Parker,  8  Barb.  48  ;  2  own  benefit.  Lane  v.  Taylor,  40  Ind. 
Kent,  Com.  229 ;  Diettrich  v.  Heft,  5  495.  He  must  not  derive  profit  by 
Barr,  87 ;  Clowes  v.  Van  Antwerp,  4  setting  fictitious  values,  but  account 
Barb.  416;  Lefevre  v.  Laraway,  22  according  to  true  valuations.  Titles 
Barb.  168;  Kennaird  v.  Adams,  11  B.  adverse  to  the  ward's  interest  cannot 
Monr.  102;  Sparbawk  v.  Allen,  1  Fos-  be  disposed  of  fur  his  own  benefit  and 
ter  (N.  H.),  9;  Heard  v.  Daniel,  26  to  the  ward's  detriment.  Spelman  v. 
Miss.  451  ;  Jennings  v.  Kee,  5  Ind.  257 ;  Terry,  15  N.  Y.  Supr.  205.  If  the  guar- 
infra,  c.  9.  dian  has  a  life  interest  in  land  of  which 

3  Mann  v.  McDonald,  10  Humph,  the  ward  is  seised  in  fee,  he  cannot 
275.  He  cannot  contract  with  himself  apply  to  the  ward  the  whole  cost  of  re- 
as  a  guardian,  so  as  to  force  his  ward  moving  an  encumbrance,  principal  and 
into  a  compromise  settlement  of  claims  interest.  Bourne  v.  May  bin,  3  Woods 
witli  his  other  creditors.     81  Tex.  104.  C.  C.  724. 

551 


§  348  THE   DOMESTIC    RELATIONS.  [PART    TV. 

ward's  subsequent  election,  on  reaching  majority,  to  disaffirm 
the  sale.  The  guardian,  meanwhile,  takes  the  legal  title ;  more 
especially  if  the  sale  was  conducted  through  a  third  party,  who 
afterwards  conveyed  to  him.1 

The  guardian  is  not  to  apply  property  exempt  from  attach- 
ment or  execution  in  satisfaction  of  his  ward's  debts.2  He  must 
not  mingle  his  own  funds  with  those  of  his  ward.  Where  there 
are  several  wards,  he  must  allot  to  each  his  due  share  of  expenses 
and  profits.  And  if  he  becomes  insolvent,  and  gives  the  bulk  of 
the  property  received  by  him  to  one,  and  little  or  nothing  to  the 
others,  equity  will  still  treat  the  property  as  belonging  to  the 
wards  in  their  proper  shares.3 

So  far  as  the  guardian  acts  within  the  scope  of  his  powers  he 
is  bound  only  to  the  observance  of  fidelity,  and  such  diligence 
and  prudence  as  men  ordinarily  display  under  like  circumstances. 
And  in  absence  of  misconduct  his  acts  are  liberally  regarded  like 
those  of  any  trustee.  He  is  not  liable  for  investments  carefully 
made,  which  afterwards  prove  worthless  ;  nor  where  he  deals 
with  failing  debtors  prudently  under  all  the  circumstances, 
though  good  security  be  not  available  and  a  loss  finally  occurs.4 
Nor  is  he  responsible  for  funds  of  which  he  was  robbed  without 
his  fault.5  But  for  any  fraudulent  transaction  to  which  he  lends 
himself  he  must  suffer  the  consequences.6  And  if  by  his  negli- 
gence the  estate  has  suffered  loss,  he  must  make  good  the  defi- 
ciency.7 What  acts  amount  to  fraud  or  culpable  negligence  will 
depend  upon  circumstances.  Ignorance  of  duty  is  equivalent  to 
misconduct,  where  the  ward's  interests  suffer  by  it,8     And  a  sale 

1  Ex  parte  Lacey,  fi  Yes.  625;  Le-  8  Case  of  Hampton,  17  S.  &  R.  144. 

fevre  v.  Laraway,  22  Barb.  168;  Chor-  4  Barney  v.  Parsons,  54  Vt.  623;  88 

penning'fl    Appeal,  32   Penn.  St.  315;  N.  C.  164;  Lamar  v.  Micou,  112  U.S. 

Hoskina    r.    Wilson,    4    Dev.    &    Batt.  452;    §353. 

243  ;  Blackmore  v.  Shelby,   8   Humph.  &  Furman   v.  Coe,   1    Caiues's    Cas. 

439 j     16     Lea,    732;     61     Miss.    766;  96;  Atkinson   ?;.  Whitehead,  66  N.  C. 

Hudson    '•.  Holmes,  23    Ala.   585.     But  296. 

seeBeal  v.   Harmon,  38  Mo.  435.     See  G  McCahan's  Appeal,  7  Barr,  56. 

,///,-/.  «•.   9.       l„    .Missouri,  under  the  ~<  2  Kent,  Com.  230;  Glover  v.  Glo- 

-li  laws,  the  guardian  might  pur-  ver,  1   McMull.   153;    Rover's  Appeal, 

cha  e  landsof  1 » I  —  ward  with  the  conrt'a  ll    Penn.  St.  36;  Wynn  v.  Benbury,  4 

permission.      M'Nair   >■.   Hunt,   5    Mo.  Jones  Eq.  395;  113N.C.103. 

800.  8  Nicholson's  Appeal,  20  Penn.  St. 

-  Fuller  < .  Wing,  5  Shep.  222.  50. 

552 


CHAP.  VI.]      RIGHTS   AND   DUTIES   OF   GUARDIANS.  §  349 

of  the  ward's  rights  of  property  at  a  grossly  inadequate  price, 
upon  the  guardian's  own  responsibility,  may  be  afterwards  set 
aside  at  the  instance  of  the  ward.1  Unauthorized  acts  which 
turn  out  ill  for  the  ward  are  not  usually  protected.2 

§  349.  The  Same  Subject.  — The  guardian  of  an  insane  adult 
ward  cauuot  lawfully  continue  the  ward's  business,  so  as  to 
charge  it  with  losses  thereby  incurred.3  But  where  he  does  so 
beneficially,  the  ward,  by  acceptance  of  the  benefits  after  becom- 
ing sui  juris,  may  be  estopped  from  objecting.4  A  ward's  prop- 
erty should  not  be  subjected,  at  the  guardian's  instance,  to  the 
hazards  of  business,  nor  should  a  probate  court  confer  any  such 
authority.5 

The  guardian's  responsibility  extends  only  to  such  property  of 
his  ward  as  is  accessible  to  him.  But  having  once  come  into 
possession,  or  gained  knowledge  of  his  right  of  possession,  it  is 
his  duty  to  account  for  the  property ;  for  the  law  then  imposes 
upon  him  a  prima  facie  liability.6  And  the  fact  that  money 
was  collected  in  another  State  beyond  his  jurisdiction  cannot 
affect  his  obligation  to  account ;  but  where  assets  never  reach 
his  hands  from  another  State  or  country,  the  question  is  whether 
he  used  such  diligence  in  attempting  to  collect  as  a  prudent  busi- 
ness man  would  usually  exercise  under  such  circumstances.7 
When  one  assumes  the  office  of  guardian,  indebted  at  the  time 
to  his  ward,  the  indebtedness  becomes  assets  to  be  properly 
accounted  for.8 

Courts  of  equity  follow  the  ward's  property  whenever  wrong- 
fully disposed  of  or  appropriated  by  the  guardian;  and  any  per- 
son in  whose  hands  it  is  found  will  be  held  as  trustee,  if  it  can 
be  shown  that  it  came  into  his  possession  with  notice  of  the 
trust.9     The  guardian  himself  may  follow  his  ward's  property 

1  Leonard  v.  Barnum,  34  Wis.  105.  Howell    v.    Williamson,    14  Ala.  419  ; 

2  May  v.  Duke,  61  Ala.  53;  McDuf-  Martin  v.  Stevens,  30  Miss.  159. 
fie  i'.  Mclntyre,  11  S.  C.  551.  7  Harris  v.  Berry,  82  Ky.  137. 

3  Corcoran  v.  Allen,  11  R.  I.  567.  8  Thus,  where  he  becomes  guardian 

4  Hoyt  v.  Sprague,  103  U.  S.  Supr.  upon  an  express  agreement  to  assume 
613.  all  liabilities  of    his  predecessor,   who 

5  Michael  v.  Locke,  80  Mo.  548.  had  converted  the  ward's  estate.  Mar- 
And    see    Bush  v.  Bush,  33  Kan.  556;  tin  v.  Davis,  80  Wis.  376. 

Carter  v.  Lipsey,  70  Ga.  417.  9  Carpenter  v.  McBride,  3  Fla.  292. 

6  Bethune    v.    Green,   27    Ga.    56  ;     See  McCall  v.  Flippin,  58  Tenn.  161. 

553 


§  350  THE   DOMESTIC   RELATIONS.  [PART  IV. 

wherever  he  can  find  it,  whether  into  the  hands  of  a  former 
guardian  or  such  guardian's  transferee.1  And  legacies  charged 
on  land  and  payable  to  the  ward  on  reaching  majority,  though 
paid  meanwhile  to  his  guardian,  remain  a  lien  on  the  land  until 
actually  received  by  the  ward.2  Innocent  third  parties  for  value 
are  not  affected  by  the  guardian's  fraud  ;  and  the  usual  barrier 
applies  as  to  negotiable  securities.3  But  in  general,  where  third 
parties  neglect  to  make  reasonable  inquiries  as  to  facts  which 
ought  to  have  raised  suspicion  in  their  minds,  they  may  have 
to  suffer  for  their  own  imprudence.4 

§  350.  Management  of  Ward's  Real  Estate  in  Detail.  —  The 
guardian  has  the  management  and  control  of  his  ward's  real 
estate  so  long  as  his  general  authority  lasts.  It  is  his  duty  to 
collect  the  rents  for  the  benefit  of  his  ward,  in  which  connection 
he  may,  according  to  custom,  employ  a  real-estate  agent  or  col- 
lector.5 He  may  avow  for  damage  feasant,  sue  for  non-payment 
of  rent,  and  bring  trespass  and  ejectment  in  his  own  name.  This 
was  the  common-law  rule  as  to  guardians  in  socage,  and  it  still 
applies  to  testamentary,  chancery,  and  perhaps  to  probate  guar- 
dians. The  recognized  principle  is  that  such  guardians  have  an 
authority  coupled  with  an  interest,  and  not  a  bare  authority.6- 
A  guardian  makes  himself  personally  liable  where  he  permits 
others  to  negligently  collect  the  rents,  or  occupies  the  premises 
himself,  or  suffers  the  premises  to  remain  unoccupied,  or  wilfully 
or  carelessly  permits  others  to  occupy  them  to  the  ward's  detri- 
ment;7 and  in  the  exercise  of  ordinary  business  discretion  and 
subject  to  the  usual  rules  of  agency  he  is  liable  for  his  ward's 
rents  which  were  or  should  have  been  collected.8 

1  Fox  v.  Kerper,  51  Tnd.  148.  v.  Shepherd,  3  Md.  Ch.  300.     But  such 

2  Cato  v.  Gentry,  28  Ga.  327.  suits  cannot  in  Illinois  be  bought  bj  a 
15  Sec   Gum   v.   Swearingen,  69   Mo.     probate  or  statute    guardian,  and    un- 

553;  2  Schooler,  Pers.  Prop.  23.  der  local  statutes  different  rules  apply. 

*  Gale  v.  Wells,  12  Barb.  84;  Hun-    Muller  v.  Benner,  09  111    108;  Wallis 
u-r  r.  Lawrence,  11   Gratt.  ill;  Bevis    v.  Bardwell,  126  Mass.  366. 

r  Benin,  63  Ind.  129.  7  Wills's  Appeal,  22  Penn.  St.  325; 

•'-  /:<  I'lii.u,  81  X.  J.  Eq.  640.  Clark  v.  Burnside,  15  111.  02  ;  Hughes's 

•  Shaw  v.  Shaw,  Vern.  &  Scriv.  607 ;  Appeal,  53  Penn.  St.  500;  Spelman  v. 
Bacon  w.  Taylor,   Kirby,  -'io*  ;  -J   Kent,  Terry,  74  N.  T.  448. 

Com.  228;    lorry  v.   Black,  58   N.  V.         H  Peale  v.  Thurman,77  Va.  753 ;  113 

i--,    p i  ,-.  Curtiss,  7  Wend.  45;  Huff    N.  C'108.    Ho  cannot  give  the  child's 

p.  Walker,!  Cart.  193.  And  see  O'Hara    rents  or  use  and   occupation  without 

55 1 


CHAP.  VI.]      RIGHTS   AND   DUTIES   OF   GUARDIANS.  §  350 

The  guardian  may  also  lease  his  ward's  lands.  But  his  demise 
cannot  last  for  a  longer  period  than  the  law  allows  for  the  con- 
tinuance of  his  trust.  And  it  will  determine  upon  the  ward's 
death  in  any  event.  A  lease  made  by  a  guardian,  extending  be- 
yond the  minority  of  his  ward,  was  once  considered  void  ;  but 
the  modern  rule  treats  such  leases  as  void  only  for  the  excess  at 
the  election  of  -the  ward.1  The  same  principles  apply  to  guar- 
dians of  insane  persons  and  spendthrifts.  And  the  rule  embraces 
assignments  of  the  ward's  leases.2  The  guardian  must  not  lease 
imprudently,  nor  so  as  to  sacrifice  his  ward's  interests  for  the 
benefit  of  others.3  The  father,  as  natural  guardian,  cannot  lease 
the  land  of  his  child ;  nor  can  the  mother ;  nor  can  any  mere 
custodian  of  the  person.4  So,  too,  guardians  may  take  premises 
on  lease.  And  though  the  words  "  A.  and  B.,  guardians  "  of  cer- 
tain minors,  are  used  in  a  lease,  the  guardians  are  personally 
bound  to  the  lessor  to  pay  the  rent.5  The  guardian's  power  to 
lease  extends  only  to  usufruct,  and  not  to  exhaustion  of  the 
corpus? 

Where  a  guardian  cultivates  his  ward's  farm  instead  of  letting 
it  out,  he  is  bound  to  cultivate  as  a  prudent  farmer  would  his 
own  land  ;  otherwise  the  loss  by  depreciation  of  the  property  in 
value  must  be  made  good  by  him.7  And  for  losses  occurring 
through  his  bad  management  of  his  ward's  real  estate,  he  can- 
not  expect  to  be  recompensed.8     In  the  exercise  of  due  prudence 

consideration  even  to  the  child's  parent.  See    Drury    v.   Conner,    1    Har.  &  G. 

Cheney  v.  Roodhouse,  135  111.  257;    76  220. 

Hun,  186.  5  Hanuen  v.  Ewalt,  18  Penn.   St.  9. 

1  Bac.  Abr.  Leases,  I.;  2  Kent,  Com.  See  Snook  v.  Sutton,  5  Halst.  133. 

228  ;  1   Washb.  Real   Prop.  307  ;  Rex  6  Thus,  a  guardian  cannot  lease  oil 

v.  Oakley,  10  East,  494;    Putnam    v.  or  mineral    lands   for    the    purpose  of 

Ritchie,  6  Paige,  390 ;  Field  v.  Schief-  working  out  the  product.     Stoughtou's 

felin,    7    Johns.    Ch.    150  ;     People    v.  Appeal,  88  Penn.  St.  198. 
Ingersoll,  20  Hun,  316  ;    Richardson  r.  7  Willis  v.  Fox,  25  Wis.  646. 

Richardson,  49   Mo.   29.      See    statute  8  Harding  v.  Lamed,  4  Allen,  426. 

restriction  in  Muller  v.  Benner,  69  111.  The  approval  of  the   probate   court    is 

108 ;  58  Iowa,  308  ;  90  Ky.  600.  not,  in  Illinois,  essential  to  the  validity 

2  Ross  v.  Gill,  4  Call,  250.  of  the  guardian's  lease  ;  unless  so  dis- 

3  Knothe  v.  Kaiser,  5  Thomp.  &C.4  ;  approved,  the  lease  is  good.  Field  v. 
Thackray's  Appeal,  75  Penn.  St.  132.  Herrick,  101  111  110.     Cf.  58  Iowa,  308. 

4  Anderson  v.  Darby,  1  N.  &  McC.  In  some  States  leases  are  limited  at  all 
369  ;  Magruder  v.  Peter,  4  Gill  &  events  to  seven  years,  or  other  stated 
Johns.  323  ;   Ross  v.  Cobb,  9  Yerg.  463.  period. 

555 


350 


THE   DOMESTIC    DELATIONS. 


[PART  IV. 


lie  may  let  out  his  ward's  lands  for  raising  a  crop  on  shares.1 
Or  he  may  carry  on  the  farm  as  guardian  when  he  can  do  so 
with  fair  regard  for  the  ward's  benefit,  and  claim  allowance 
accordingly  for  his  reasonable  outlay.2  If  he  occupy  the  premises 
personally,  he  should  account  for  rent.3 

The  guardian  may  grant  an  easement  in  his  ward's  lands; 
but  it  is  of  no  avail  beyond  the  limit  of  his  guardianship.4  He 
may  authorize  the  cutting  of  standing  timber,  and  allow  others 
to  carry  it  away,5  though  not  so  as  to  authorize  a  waste  of  the 
corpus?  But  his  license  should  be  given  in  all  cases  for  his 
ward's  benefit,  and  so  with  the  receipt  of  damages  for  another's 
trespass."  And  if  trees  are  cut  and  carried  away  by  his  permis- 
sion, so  that  trespass  cannot  be  maintained,  he  must  make  com- 
pensation to  the  ward.8  A  guardian  having  the  means  should 
with  due  prudence  insure  buildings,  pay  taxes  and  assessments 
on  his  ward's  lands,  and  keep  the  premises  in  tenantable 
condition.9 

Guardians  may  assign  dower.  And  it  seems  that  the  guar- 
dian's assignment  will  bind  the  heir,  although  Blackstone  and 
ritzherbert  state  the  law  otherwise.10  The  deed  of  a  married 
woman,  guardian  of  infants,  in  such  capacity,  does  not  convey 
her  right  of  dower.11  Guardians  may  also  institute  proceedings 
for  partition.  Such  proceedings,  in  England,  should  be  by  bill 
in  equity.12     In  this  country  the  subject  is  commonly  regulated 


i  Weldon  v.  Little,  53  Midi.  1. 

2  Remington  v.  Field,  16  R.  I.  509. 

3  34  Hun,  542. 

*  Watkins  r.  Peck,  13  N.  H.  360 ; 
Johnson  '••  Carter,  16  Mass.  443.  Un- 
der  Ohio  statutes,  a  guardian  cannot 
grant  a  right  of  way  through  land 
owned  by  his  wards  without  authority 
from  the  probate  court.  State  v.  Ham- 
ilton County,  39  Ohio  St.  58.  And  see 
Indiana  U.  v.  Brittingham,  98  Ind.  294. 
A-  to  his  authority  acting  under  orders 
of  a  competent  conrt  to  dedicate  lands 
to  the  public  tor  streets,  &c.,  see  Indian- 
apolis v.  Kingsbury,  KM  Ind.  200.  lie 
cannot  waive  his  ward's  homestead 
right-.     64  Iowa,  467. 

■  I  "iiU.   Eq.  Tr.  82,  n. ;  Thompson 

556 


v.  Boardman,  1  Vt.  367  ;  Bond  v.  Lock- 
wood,  33  111.  212. 

c  Torry  v.  Black,  58  N.  Y.  185. 

I  lb. 

8  Truss  v.  Old,  6  Rand.  556. 

9  For  loss  imprudently  caused  by  a 
tax  sale  the  guardian  is  liable,  unless 
the  ward  become  of  age  before  the  sale. 
Shurtleff  v.  Rile,  140  Mass.  213.  See 
61    Iowa,  375. 

10  2  HI.  Com.  136 ;  Fitzh.  N.  B.  348 ; 
1  Washb.  Real  Prop.  226;  Jones  v. 
Brewer,!  Pick.  314;  Young  u.  Tarbell, 
37  Me  509;  Curtis  v.  Hobart,  41  Me. 
230;  Boyers  v.  Newbanks,  2  Ind.  388; 
Clark  v.  Burnside,  C>  111.  62. 

II  Jonest'.  Hollopeter,  10  S.  &.  R.326. 
1-  Macphers.  Inf.  340. 


CHAP.  VI.]       RIGHTS   AND   DUTIES   OF   GUARDIANS.  §  351 

by  statute.  A  guardian  may  purchase  for  his  ward,  who  is  oue 
of  the  heirs,  such  portion  of  an  estate  as  the  other  heirs  refused 
to  take  on  partition,  and  the  court  ordered  to  be  sold.1 

§351.  The  Same  Subject.  —  From  what  has  been  already 
said,  it  appears  clear  that  the  guardian  may  execute  all  the 
deeds  and  other  writings  necessary  to  the  fulfilment  of  his  trust. 
But  such  instruments  should  be  signed  in  the  name  of  his 
ward.2  On  the  same  principle  that  agents  and  trustees  are 
personally  bound  when  they  exceed  their  authority,  a  guar- 
dian makes  himself  personally  liable  for  stipulations  which 
he  has  no  right  to  insert  in  a  deed,  and  for  authorized  cove- 
nants, so  badly  worded  that  they  fail  to  bind  the  ward's  es- 
tate ;  but  not,  it  would  appear,  for  implied  covenants  merely.3 
Where  a  married  woman  has  executed  a  deed  as  guardian,  it 
would  seem,  on  principle,  that  the  joinder  of  her  husband  is 
unnecessary.4 

It  is  the  guardian's  duty  to  keep  the  ward's  premises  in 
repair,  and  he  may  use  cash  in  his  hands  for  that  purpose 
within  reasonable  limits.5  But  as  our  next  chapter  will  show, 
his  power  at  common  law  over  the  ward's  real  estate  is  closely 
circumscribed,  and  he  cannot  build  or  make  expensive  perma- 
nent improvements  without  a  previous  order  from  a  court  of 
equity,  which  is  in  the  absence  of  statute  to  be  construed  strictly.6 
And  where  he  advances  money  for  such  purposes,  without 
first  obtaining  an  order,  it  would  appear  that  he  is  without  a 
remedy.7  But  the  court  will  sometimes  protect  such  expen- 
ditures, on  the  ground  that  the  ward  has  received  a  benefit 
thereby ; 8  and  this  seems  the  more  reasonable  doctrine,  though 
not  clearly  recognized  in  this  country  aside  from  express  legis- 

1  Bowman's  Appeal,  3  Watts,  369.  5  Payne  v.  Stone,  7  S.  &  M.  367  ; 

2  Hunter  v.  Dashwood,  2  Edw.  Ch.  Miller's  Estate,  1  Penn.  St.  326.  And 
41 5.  see  Powell  v.  North,  3  Ind.  392 ;  Lane 

3  Whiting  v.  Dewey,  1 5  Pick.  428  ;  v.  Taylor,  40  Ind.  495. 

Webster  >:  Conley,  46  111.  13.  ">  Hassard   v.    Kowe,    11    Barb.    22; 

4  Palmer  v.   Oakley,  2   Doug.  433.  Bellinger  v.  Shafer,  2  Sandf.  Ch.  293. 
An  infant's  guardian  may  accept  deliv-        8  See   Macphers.    Inf.    295  ;    I    Atk. 
ery   of   a   deed   of    conveyance   to    his  489  ;  Hood  v.  Bridport,  1 1   E.  L.  &  Eq. 
ward.     Barney  v.  Seeley,  38  Wis.  381.  271  ;  Jackson  v.  Jackson,  1  Gratt.  143; 

5  See  Robinson  v.   Hersey,   60   Me.  90  Ky.  600. 
225. 

557 


§  352 


THE   DOMESTIC   RELATIONS. 


[PART  IV. 


lation.1  Authority  granted  to  expend  a  certain  sum  for  this  pur- 
pose is  held  no  authority  to  exceed  that  sum,  though  it  should 
prove  inadequate  ;2  but  a  liberal  decree  under  a  liberal  statute  is 
construed  otherwise.3  Nor  Las  the  builder  any  lien  upon  the 
ward's  real  estate  for  such  excess.4  A  guardian's  stipulation,  in 
his  lease  of  the  ward's  lands,  to  pay  for  improvements,  will  not 
bind  the  ward.5  Nor  can  a  guardian's  joinder  in  highway  peti- 
tions or  other  illegal  acts.6 

Stock  and  farming  utensils  on  the  ward's  farm  are  prima  facie 
the  ward's  property,  as  against  a  guardian  who  lias  carried  on  the 
farm  in  person.7  But  this  does  not  exempt  from  attachment 
property  of  the  guardian  which  he  purchases  and  places  upon  the 
ward's  lands  ;  for  the  question  of  title  is  always  open  to  proof.8 

The  guardian's  power  to  borrow  money  on  a  mortgage  of  his 
ward's  lands,  and  to  create  liens  upon  it  generally,  is  regarded 
with  very  little  favor.  He  could  hardly  make  the  mortgage 
operate  be}Tond  the  minority  of  his  ward,  at  any  rate,  if  the 
ward,  on  reaching  majority,  elected  to  disaffirm  it ;  and  his  only 
safe  course  would  be  to  secure  the  previous  permission  of  the 
court ;  which  American  statutes  in  these  days  generally  permit 
to  be  done  on  special  proceedings.9 

§  352.  Management  of  the  Ward's  Personal  Property  in 
Detail.  —  As  to  personal  property,  one  of  the  first  duties  of  all 


1  Cheney  v.  Roodhouse,  135  111.  257, 
recognizes  this  doctrine. 

2  Snodgrass's  Appeal,  37  Penn.  St. 
377. 

8  May  v.  Skinner,  149  Mass.  375. 
4  Guy  v.  Du  Uprey,  16  Cal.  195. 
6  Barrett  v.  Cocke.  12  Heisk.  566. 

6  84  Mich.  128;  145  111.  658.     As  to 
mechanic's  lien,  Bee  96  Cal  484. 

7  Tenney  v.  Evans.  1 1  N.  II.  346. 
lb.;  14  N.  H.  343. 

'•'  Merritt  v.  Simpson,  41  111.  391 ; 
[ace  v.  Smith,  39  Ga.  130;  Wood 
p.  Truax,  .vj  Mich.  628;  Edwards  v. 
Taliafero,  34  Mich.  18.  And  sec  next 
chapter.  Power  to  sell  and  convey 
under  a  trust  does  not  include  power  to 
mortgage  Tyson  <■.  Latrobe,  4-2  Md, 
825.     •  igning  a  mortgage,  see 

'  558 


next  section.  Where  a  statute  requires 
(as  in  case  of  a  land  warrant)  a  particu- 
lar authority  to  be  obtain  cm  1  for  a  trans- 
fer of  land,  one  who  purchases  without 
ascertaining  that  it  has  been  pursued 
an-  at  his  peril.  Mack  v.  Bramnier,  28 
Ohio  St.  508.  The  Illinois  constitution 
and  statutes  confer  large  powers  on  the 
county  courts  as  to  granting  leave  to 
mortgage,  and  a  mortgage  may  lie  au- 
thorized to  secure  a  loan  obtained  in 
order  to  make  improvements  on  the 
ward's  land.  Mortgage  Co.  v.  Sperry, 
138  U.  S.  313.  Cf.  11  Oreg.  58.  Ono 
who  lends  money  to  a  guardian  who  is 
authorized  by  the  court  to  borrow  for 
the  purpose  of  removing  liens  may  re- 
cover  the  amount  from  the  ward's  es- 
tate.    Kay  v.  McGinniss,  81  Iud.  451. 


CHAP.  VI.]       RIGHTS   AND   DUTIES   OF   GUARDIANS.  §  352 

trustees  is  to  place  the  property  in  a  state  of  security.  Guar- 
dians in  this  respect  are  treated  on  the  same  footing  as  other 
trustees.  Choses  in  action  should  be  reduced  to  possession  with- 
out unnecessary  delay ; 1  to  which  we  should  add,  however, 
that  incorporeal  personalty  of  various  kinds  serves  in  modern 
times  for  a  long-continued  investment.  All  claims  should  be 
collected  as  prudence  may  require,  concerning  which  the  guar- 
dian has  been  put  upon  inquiry.2  Money  temporarily  in  the 
guardian's  hands  should  be  deposited  in  some  responsible  bank 
of  good  repute.  But  wherever  placed  and  however  invested, 
the  trust  funds  should  be  separated,  by  distinguishing  marks, 
from  his  private  property;  exceptions  occurring,  however,  in 
some  cases  of  a  temporary  deposit;  as  for  instance  where  the 
money  is  left  in  one's  iron  safe  with  his  private  valuable  papers 
for  no  unreasonable  length  of  time  and  under  circumstances 
imputing  to  him  no  want  of  ordinary  prudence  and  diligence, 
either  in  placing  and  keeping  it  there  in  that  condition,  or  in 
pursuing  the  thief  who  took  it  out.  Otherwise,  he  would  be 
personally  liable  for  loss.  Hence,  if  a  guardian  deposits  money 
of  the  ward  in  the  bank  to  his  own  account,  or  takes  a  certificate 
of  deposit  simply  to  himself,  and  the  bank  afterwards  fails,  he 
must  suffer  the  consequences  ; 3  though  it  is  otherwise,  where 
he  deposits  there  not  imprudently  or  dishonestly  in  his  trust 
capacity.4  So,  if  he  purchases  stock  or  takes  a  promissory  note 
in  his  own  name,  it  will  be  treated  as  his  own ;  but  not,  neces- 
sarily, to  the  ward's  prejudice,  for  it  might  otherwise  be  clearly 

1  See  Hill,  Trustees,  447,  and  cases  ney  in  good  standing,  who  collects  and 
cited  ;  Caff  rey  v.  Darby,  6  Ves.  488 ;  embezzles  the  money,  he  is  not  respon- 
Powell  v.  Evans,  5  Yes.  839 ;  Lewson  sible  for  the  loss,  if  using  common  pra- 
v.  Copeland,  2  Bro.  C.  C.  156;  Tebbs  v.  deuce  under  the  circumstances.  Land- 
Carpenter,  1  Madd.  298;  Caney  v.  messer's  Appeal,  126  Penn.  St.  115. 
Bond,  6  Beav.  486.  So  as  to  infant  3  Wren  v.  Kirton,  11  Ves.  377; 
husband  or  wife.  Ware  v.  Ware,  28  Fletcher  v.  Walker,  3  Madd.  73 ;  Mc- 
Gratt.  670;  Shanks  v.  Edmondson,  28  Dounell  v.  Harding,  7  Sim.  178;  Routh 
Gratt  804.  v.    Howell,   3    Ves.   565 ;    Matthews   v. 

2  The  guardian  of  a  soldier's  heir  Brise,  6  Beav.  239;  Atkinson  v.  White- 
should  ascertain  as  to  his  pension  and  head,  66  N.  C.  296.  As  to  a  certificate 
bounty  rights,  and  pursue  claims  ac-  of  deposit,  see  Booth  v.  Wilkinson,  78 
cordingly.     Clodfelter  v.  Bost,  70  N.  C.  Wis.  652. 

733.     Where  the  guardian  puts  a  claim  4  Post's  Estate,  Myrick's  Prob.  230; 

for  collection  into  the  hands  of  an  attor-    Law's  Estate,  144  Penn.  St.  499. 

559 


§352 


THE   DOMESTIC    RELATIONS. 


[PART   IV. 


identified  and  traced  as  the  ward's  property.1  And  it  would 
appear  that  he  is  not  permitted  in  such  cases  to  show  by  other 
evidence  an  intent  to  charge  his  ward  ;  for  the  act  itself  is 
conclusive  against  him.2 

The  guardian  may  receive  money  secured  to  the  ward  by 
mortgage,  and  discharge  the  mortgage,  before,  at,  or  after  ma- 
turity, in  the  exercise  of  due  prudence  and  foresight ; 3  and  so, 
too,  he  may  extend  or  renew  a  mortgage  note  or  other  note  on 
fair  terms ;  i  and  on  a  breach  may  sell.5  It  would  appear,  too, 
that,  in  the  absence  of  any  statute  limiting  his  powers,  he 
has,  as  incidental  to  his  office  and  duties,  the  power  to  sell,  in 
the  exercise  of  sound  business  discretion,  his  ward's  personal 
property,  except,  perhaps,  as  to  peculiar  incorporeal  kinds.6 
Formal  acts  in  beneficial  chattel  transactions  for  his  ward  do 
not  require  a  judicial  order.7  A  guardian  has  a  right  to  the 
custody  of  his  ward's  personal  property  and  may  maintain  a 
suit  against  others  for  its  possession.8 

In  collecting  outstanding  debts  or  prosecuting  claims  a  rea- 
sonable time  is  to  be  allowed  the  guardian.     Ordinary  prudence 


i  Jenkins  r.  Walter,  8  Gill  &  Johns. 
218;  White  v.  Parker,  6  Barb.  48; 
Knowlton  v.  Bradley,  17  N.  H.  458; 
Brown  v.  Dunham,  11  Gray,  42;  Beas- 
ley  v.  Watson,  41  Ala.  234. 

"  2  Brisbane   v.   Bank,  4   Watts,  92  ; 
Stanley's  Appeal,  8  Barr,  431. 

3  Chapman  v.  Tibbits,  33  N.  Y.  289  ; 
Smith  v.  Dibrell,  31  Tex.  239.  The 
debtor  is  discharged,  though  the  guar- 
dian squander  the  proceeds.  35  La. 
Ann.  310.  Mortgaged  land  may  be  re- 
deemed from  a  tax  sale.     57  Iowa,  545. 

*  Willick  v.  Taggart,  17  Hun,  511. 

6  Taylor  v.  Hite,  61  Mo.  142. 

a  See  Wallace  v.  Holmes,  9  Blatchf. 
07 ;  supra,  Humphrey  v.  Buissou,  19 
Minn.  221.  A  guardian  cannot,  in  South 
Carolina, sell  :md  assign  bis  ward's  bond 
and  mortgage  of  real  estate  without 
judicial  sanction.  McDuffie  v.  Mcln- 
tyre,  lis.  c  551.  Aliler,  probably,  in 
manyStates  |  though  the  right  to  assign 
re.-i!  estate  security  is  more  doubtful 
than  that  of  assigning  a  simple  note  or 
560 


bond  upon  personal  security  or  without 
security.  See  preceding  section  ;  Mack 
v.  Brammer,  28  Ohio  St.  508.  General 
guardians  do  not  represent  their  in- 
fant wards  in  foreclosure  proceedings. 
Sheahan  v.  Wayne,  42  Mich.  69. 

Stock  and  its  transfer  follow  peculiar 
rules.  Shares  of  stock  standing  in  the 
name  of  "  A.  B.  guardian  "  cannot  be 
sold  so  as  to  compel  the  company  to 
recognize  the  transferee,  without  order 
of  the  court.  I)e  la  Montagnie  v. 
Union  Ins.  Co.,  42  Cal.  290. 

A  guardian's  sale  of  cotton  on  credit, 
taking  the  purchaser's  note  without  se- 
curity according  to  business  usage,  does 
not  necessarily  render  the  guardian 
liable  if  such  purchaser  turn  out  insol- 
vent.    State  v.  Morrison,  68  N.  C.  162. 

"  Thus  he  may  discharge  a  tontine 
life  insurance  policy  upon  receiving  its 
actual  surrender  value  when  the  proper 
period  arrives.  Maclay  v.  Equitable 
Co.,  152  U.S.  499. 

•   Uoruff  e.  Stipp,  126  Ind.  32. 


CHAP.  VI.]      RIGHTS   AND   DUTIES   OF   GUARDIANS.  §  352 

and  diligence  is  the  rule  ;  and  for  culpable  negligence  subjecting 
the  estate  of  his  ward  to  loss  he  may  make  himself  personally 
liable,  even  though  the  demand  be  against  a  person  residing  in 
another  State.1  He  is  not  to  sue  in  all  cases  where  ordinary 
modes  of  collection  fail ;  for  the  expenses  of  litigation  are  to 
be  weighed  against  the  chances  of  realizing  a  benefit.2  What  is 
a  reasonable  time  will  depend  upon  circumstances.  It  is  his 
duty  to  contest  all  improper  claims,  though  presented  by  the 
surviving  parent.3  Nor  can  he  with  safety  permit  the  admin- 
istrator of  the  estate  of  his  ward's  father  to  control  property 
of  which  he  is  the  legal  custodian.  And  he  must  hold  an 
administrator  to  account  in  all  cases.4  If  a  guardian  takes 
notes  of  third  persons  in  payment  of  an  indebtedness  to  his 
ward,  and  afterwards  receives  the  money  upon  the  notes  and 
appropriates  the  money  as  guardian,  the  payment  by  the  debtor 
is  sufficient.5  In  the  exercise  of  prudence  and  good  faith  a 
guardian  may,  to  save  the  ward  from  loss,  accept  property,  real 
or  personal,  in  settlement  of  the  latter's  debt  or  claim.6  Nor  is 
he  personally  liable,  in  every  case,  on  a  note  received  by  him 
with  other  assets,  which  turns  out  afterwards  to  be  worthless,  on 
the  ground  that  it  might  have  been  collected  when  transferred 
to  him  ;  for  a  guardian's  liability  has  its  reasonable  limits ;  the 
tpaestion  is  one  of  ordinary  prudence  and  good  faith.7  And 
money  paid  to  a  guardian  by  mistake  cannot  be  recovered  again, 
if  he  has  paid  it  out  before  receiving  notice  of  the  mistake.8 
"Where  a  note  or  debt  is  lawfully  due  from  a  solvent  party,  the 
guardian  may  be  held  accountable  for  the  whole  if  he  settles 
for  less  than  the  full  face  amount.9  And  where  the  party  is 
insolvent  and  the  guardian  loses  the  chance  of  gaining  some 
dividend  on  the  claim  by  his  supine  negligence,  he  is  also 
answerable.10 


1  Potter  v.  Hiscox,  30  Conn.  508.  7  Stem's    Appeal,    5    Whart.    472  ; 

2  §  343.  Waring  v.  Darnall,  10   Gill  &   Johns. 
8  Ex  parte  Guernsey,  21  111.  443.  127  ;  Love  i>.  Logan,  69  N.  C.  70. 

*  Wills's  Appeal,  22  Penn.  St.  325 ;  8  Massey  v.  Massey,  2  Hill,  Ch.  492. 

Clark  v.  Tompkins,  1   S.  C.   n.  s.  119;  9  Darby  v.  Stribling,  22  S.  C.  243. 

113  N.  C.  103;  148  Mass.  434.  w  Webber's   Estate,    133    Penn.   St. 

6  Jones  v.  Jones,  20  Iowa,  388.  338. 

6  Mason  v.  Buchanan,  62  Ala.  110. 

30  561 


§  353  THE   DOMESTIC   RELATIONS.  [PART  IV. 

§  352  a.  Whether  the  Guardian  can  Bind  by  Pledge,  &c.  — 
In  New  Hampshire  it  is  held  that  a  guardian  has  no  common- 
law  authority  to  bind  his  ward  or  the  trust  fund  by  a  pledge 
of  the  ward's  property.  A  guardian  who  signs  a  note  as 
guardian  simply  binds  himself  personally ;  and  one  who 
takes  in  pledge  from  a  guardian  a  note  payable  to  the 
order  of  the  guardian,  has  not  even  an  innocent  holder's 
protection.1 

§  353.  Investment  of  Ward's  Funds.  —  Like  all  other  trustees, 
the  guardian  is  bound  to  make  his  ward's  funds  productive. 
He  should  see  that  the  capital  which  comes  to  his  hands  is 
well  secured ;  procure  a  change  of  securities  whenever  neces- 
sary ;  and  invest  surplus  moneys  where  they  may  draw  interest. 
For  funds  accruing  during  the  continuance  of  his  trust  he  is 
allowed  a  reasonable  time  for  making  his  investment,  usually 
limited  to  six  months,  though  in  some  cases  a  year  is  allowed, 
and  in  others  only  three  months  ;  and  he  cannot  suffer  the 
ward's  money  to  remain  longer  idle.'2  But  he  may  keep  a  suit- 
able surplus  on  hand  for  current  and  contingent  expenses ;  also 
sums  too  small  to  be  wisely  invested.3  And  family  relics  and 
ornaments,  household  furniture  and  farm  stock,  are  generally 
exempted  from  the  rule  of  investment. 

The  investment  of  the  trust  funds  is  therefore  one  of  the  most 
important  duties  of  a  guardian,  both  as  respects  the  interests  of 
his  ward  and  his  own  security.  Testamentary  guardians,  like 
trustees  under  deeds  of  trust,  should  follow  the  direction  of  the 
testator  in  making  investments  ;  and  for  losses  arising  from  such 
course  they  are  not  responsible.  But  their  powers  are  to  be 
construed  strictly  ;  and  where  the  will  is  silent  or  the  directions 
are  in  general  terms,  or  manifestly  improper,  chancery  rules  of 


1   Bardyr.  Bank,  61   N.  II.  34,  and  of  infirmity,  and  as  to  pledge  in  general, 

ited.     Statutes  generally  indicate  see  Schooler,  Bailm.  I':irt  IV.  c.  4. 

how    the  guardian    may   raise  money  a  Worrell's  Appeal,  28  Penn.  St.  44 ; 

whi.-i,  he  needs.     En  this  case  the  guar-  White  v.  Parker,  8  Barb.  48;  Karr  v. 

dian'a  successor  was  allowed  to  recover  Karr,  6  Dana,  3 ;  Pettns  v.  Sutton,  10 

the  aotea  pledged  by  a  bill  in  equity.  Rich.   Eq.  -356;   Owen  v.  Peebles,  42 

Bui  oe  to  the  pledge  of  negotiable  in-  Ala.  888;  infra,  §  854. 

rtrnments  nol  overdue  to  one  who  ad-  8  Bakei  v.  Richards,  8  S.  &  R.  12; 

in  good  faith,  and  without  uotice  Knowltou  v.  Bradley,  17  N.  II.  458. 

562 


CHAP.  1V.J       EIGHTS    AND   DUTIES   OF   GUARDIANS.  §  353 

investment  must  prevail.1  We  have  already  observed  that  con- 
versions are  not  favored  ;  that  is,  the  investment  of  personalty  in 
lauds  or  of  lands  in  personalty.2  But  in  many  of  our  States  the 
probate  courts  are  allowed  at  discretion,  like  courts  of  equity,  upon 
a  proper  showing,  to  permit  the  sale  of  a  ward's  lands,  and  the 
change  or  conversion  from  unproductive  to  productive  property,  or 
the  improvement  of  laud,  all  for  the  ward's  intended  benefit.3 

In  England  the  estates  of  infants  and  persons  of  unsound 
mind  under  chancery  guardianship  are  usually  controlled  by  the 
court.  The  general  practice  is  to  get  in  all  the  money  due  the 
ward  and  invest  it  in  the  public  funds.  For  this  purpose  a 
receiver  is  appointed,  if  necessary.  The  court  will  not  allow  the 
ward's  money  to  be  left  out  on  personal  security,  without  refer- 
ence to  a  master  as  to  the  sufficiency  of  the  security  ;  nor  upon 
judgment  security ;  but,  where  advantageously  invested  on  the 
security  of  real  estate,  in  Great  Britain,  the  court  will  not  disturb 
the  investment.  The  statute  of  4  and  5  Will.  IV.  c.  29,  authorizes 
investments  on  real  security  in  Ireland,  under  the  direction  of 
the  English  court  of  chancery.4 

In  this  country  the  management  of  the  personal  estate  of 
infants  and  others  is  usually  left  to  their  guardian,  subject  to 
recognized  principles  of  law  which  he  is  bound  to  follow.  There 
are  statutes  in  many  States  which  authorize  the  investment  by 
fiduciaries  only  in  particular  kinds  of  securities.  In  others  it  is 
provided  that  investments  may  be  made  in  any  manner  for  the 
interest  of  all  concerned.5  It  is  the  general  rule  that  either 
public  securities  or  real  securities  are  to  be  preferred.6  Invest- 
ments in  bonds  of  the  United  States,  or  of  the  State  having  juris- 
diction of  the  ward,  are  doubtless  proper ;  so  mortgage  invest- 

1  Macphers.  Inf.  266.     And  see  Hill,  v.  West,  75  Mo.  204.     But  the  wards 
Trustees,     368-384,      and     Wharton's  may  ratify.     58  Iowa,  326 ;  §  385. 
notes.  a  See  Ames  v.  Ames,  148  111.  321 ; 

2  See  §  347.     A  guardian  who  takes  next  c. 

title  to  lands  in  his  own  name,  paying  4  Macphers.  Inf.  266  ;  Hill,  Trustees, 

partly  in  his  ward's  money,  and  giving  395;  Norbury  v.  Norbury,  4  Madd.  191. 
a  mortgage  for  the  unsecured  sum,  is  5  Gary  v.  Cannon,  3  Ired.   Eq.  64. 

guilty  of  waste.     Robinson  v.  Pebworth,  See  State  v.  Harrison,  75  N.  C.  432. 
71  Ala.  240.     So  too  where  the  ward's  6  Gray  v.  Fox,  Saxt.  259  ;  Worrell's 

personalty  is    invested   in   real    estate  Appeal,  9  Barr,  508 ;  Nance  v.  Nance, 

without  an  order  of  the  court.     West  1  S.  C.  n.  s.  209. 

563 


§35< 


THE   DOMESTIC    .RELATIONS. 


!  PAliT  IV. 


merits  on  first-class  property  within  the  State,  and  city  and  town 
securities,  are  frequently  designated  as  suitable  investments. 
But  the  stock  of  railway,  navigation,  and  other  incorporated  com- 
panies, whose  stability  is  uncertain,  is  unsuitable ; 1  and  corpo- 
rate bonds  are  a  security  preferable  to  their  stock.  For  small 
sums  of  money  savings  banks  of  good  repute  may  be  found  con- 
venient. United  States  Bank  stock  has  been  considered  a 
proper  investment;2  and  so  with  stock  in  a  solvent  bank  of  good 
repute.3  And  while,  in  some  States,  fiduciary  officers  are  strictly 
limited  in  their  power  of  investments,  in  others,  as  Massachu- 
setts, there  is  no  favored  stock  or  security,  and  they  are  only 
bound  to  exercise  reasonable  prudence  and  sound  faith.4  But 
for  losses  which  are  without  the  protection  of  this  rule,  the  guar- 
dian or  other  trustee  is  always  personally  responsible.  And 
loans  on  the  credit  of  a  single  individual  (even  though  it  be  the 
child's  parent)  5  or  a  single  firm,  without  other  security,  or  with 
very  doubtful  security,  are  not  sustained;6  except  perhaps  in 


1  "Worrell's  Appeal,  23  Penn.  St. 
44;  Alien  v.  Gaillard,  1  S.  C.  n.  s.  279; 
French  v.  Currier,  47  N.  H.  88.  There 
are  a  number  of  receut  decisions  in  Vir- 
ginia, North  Carolina,  South  Carolina, 
Alabama,  and  other  Southern  States,  of 
temporary  importance,  which  relate  to 
investments  in  what  are  known  as 
"Confederate  securities,"  and  settle- 
ments by  a  guardian  in  the  so-called 
"Confederate  money.'"  Among  these 
Bee  Powell  v.  Boon,  43  Ala.  459;  White 
v.  Nesbit,  21  La.  Ann.  600;  Brand  v. 
Abbott,  42  Ala.  49'.);  Sudderth  v.  Mc- 
Combs,  65  X.  C.  186;  Coffin  v.  Bram- 
litt,  42  .Miss.  194;  Parsley  V.  .Martin, 
77  Va.  376;  85  N.  C.  283,500;  Green 
-  Rountree,  B8  X.  C.  164;  78  Va.  387. 
Such  investment  was  held  unlawful  in 
Lamar  v.  Micon,  112  U.  S.  452,  not- 
« ithstanding the  motive  of  the  guardian 
WOB  to  lave  property   from  confiscation. 

-  Bogga  v.  Aiiger,  4  Rich.  Eq.  408; 
contra,  Smith  v.  Smith,  7  J.  J.  Marsh. 
.'..-  And  ee  Watson  v.  Stone,  -to  Ala. 
451 

;  Haddock  v.  Planter's  Bank,  66  Ga. 

491,. 

504 


4  Konigmacher's  Appeal,  1  Penn. 
207  ;  Kimball  v.  Perkins,  130  Mass.  141  ; 
Lovell  v.  Minot,  20  Pick.  116;  Nance 
v.  Nance,  1  S.  C.  n.  s.  209  ;  Swart  wont 
v.  Oaks,  52  Barb.  622.  Where  money 
was  lost  in  a  mortgage  investment 
through  a  defective  title,  the  guardian 
was  relieved  of  the  loss,  it  appearing 
that  he  had  used  fair  prudence  in  ex- 
amining the  title.  Slauter  v.  Favorite, 
107  Ind.  291.  See  78  Va.  297.  In  Jack's 
Appeal,  94  Penn.  St.  367,  the  guardian 
was  absolved,  where  the  security  be- 
came worthless  through  an  extraordi- 
nary shrinkage  of  real-estate  values. 

6  Wyckoff  v.  Hulse,  32  N.  J.  Eq. 
697. 

8  Smith  v.  Smith,  4  Jolms  Ch.  281  ; 
122  Ind.  548;  Clay  v.  Clay,  3  Met. 
(Ky.)  548;  Boyett  *•.  Hurst,  l  Jones 
Eq.  1  GC»  ;  Clark  i<.  Garfield,  8  Allen, 
427;  Gilbert  v.  Gnptil,  34  111.  112;  Lee 
V.  Lee,  55  Ala.  590.  But  see  State  v 
Morrison,  68  N.  C.  l<">2.     If  a  doubtful 

investment,  made  in  g 1   faith,  turns 

out  advantageous  to  the  ward,  i  lie  guar- 
dian should  not,  be  harshly  dealt  with 
on  his  final  settlement.     §§  385,  386. 


CHAP.  VI.]       RIGHTS    AND   DUTIES   OF  GUARDIANS.  §  354 

special  instances  of  transactions  with  some  failing  or  doubtful 
debtor  already  owing  the  ward's  estate,  with  whom  one  seeks  to 
make  as  prudent  and  advantageous  terms  as  possible.  Nor  are 
investments  in  indorsed  notes  of  parties  of  bad  or  doubtful  stand- 
ing to  be  upheld ; J  though  the  rule  would  be  otherwise  if  their 
credit  was  good.  To  lend  money  deliberately  and  without  special 
excuse,  on  what  one  knows  is  insufficient  security,  is  a  waste  of 
the  ward's  estate.2  Loans  to  individuals  with  good  collateral 
security  are  upheld,  in  the  absence  of  a  restrictive  statute.3 
Speculative  investments  may  be  made  by  prudent  men  in  their 
own  business,  but  not  by  fiduciaries  with  their  trust  funds. 
If  a  loan  by  the  guardian  be  sanctioned  by  the  court,  he  is  not 
liable  for  loss,  unless  it  arises  from  his  subsequent  default.4 
But  the  assent  of  the  court  must  be  in  writing  and  of  record ; 
not  given  by  parol.5  In  a  few  States  the  code  strictly  requires 
the  guardian's  investments  to  be  approved  by  the  court;  and  if 
he  invests  otherwise,  he  will  be  held  responsible  for  a  loss.6 
Generally,  however,  as  to  investments  or  changes  of  investment 
in  personal  property,  the  guardian  may,  in  good  faith  and  the 
exercise  of  ordinary  prudence  and  discretion,  act  without  a 
court's  order.7 

§  354.  Same  Subject ;  •when  Chargeable  with  Interest,  &c.  — 
Negligence  and  unreasonable  delay  in  the  investment  of  trust 
funds  is  a  breach  of  official  dut}7  for  which  the  trustee  is  held 
answerable.  And  where  the  guardian  carelessly  suffers  cash 
balances  to  remain  idle  in  •  his  hands,  or  mingles  the  ward's 
money  with  his  own,  he  is  chargeable  with  interest,  and  in  case 
of  fraud  or  positive  misconduct  with  compound  interest.8     But 


1  Harding  v.  Lamed,  4  Allen,  426 ;  7  Durrett  v.  Commonwealth,  90  Ky. 
Fletcher  v.  Fletcher,  29  Vt.  98  ;  Cov-  312. 

ington  v.  Leak,  65  N.  C.  594;  Hurdle  8  Barney  v.  Saunders,  16  How.  535  ; 

v.  Leath,  63  N.  C.  597.  Swindall  v.  Swindall,  8   Ired.  Eq.  285  ; 

2  78  Va.  574.  Knott  v.  Cottee,  13  E.  L.  &  Eq.  304  ; 

3  Lovell  v.  Minot,  20  Pick.  116.  See  Stark  v.  Gamble,  43  X.  H.  465  ;  Mackin 
Torry  v.  Frazer,  2  Redf.  486.  v.  Morse,  130  Mass.  439  ;    Snavely    v. 

4  O'Hara  v.  Shepherd,  3  Md.  Ch.  Harkrader,  29  Gratt.  112;  Tyson  v. 
306  ;  Bryant  v.  Craig,  12  Ala.  354  ;  Car-  Sanderson,  45  Ala.  364 ;  Clay  v.  Clay, 
lysle  v.  Carlysle,  10  Md.  440.  3  Met.  (Ky.)  548;    Rawson  v.  Corbett, 

5  See  Newman  v.  Reed,  50  Ala.  297.  150    111.466.      But    see    Reynolds    v. 

6  103  111.  142.  Walker,    29    Miss.    250.       Compound 

565 


§354 


THE   DOMESTIC    RELATIONS. 


[part  IV. 


he  must  be  allowed  a  reasonable  time  under  all  the  circum- 
stances of  the  case.1  A  familiar  rule  charges  the  guardian  with 
interest  for  neglecting  to  invest  his  ward's  money  after  six 
months ;  yet  deferring  interest  for  that  length  of  time  is  not 
invariable,  but  depends  upon  the  circumstances.2  It  remains  a 
disputed  question  whether  the  guardian  should  be  charged  with 
compound  interest  for  mere  delinquency ;  but  it  seems  that  he 
should  not.  In  some  cases  a  trustee  has  been  so  charged,  because 
the  trusts  under  which  he  acted  required  him  to  place  the  fund 
where  more  than  simple  interest  would  have  accumulated.  In 
others,  the  principle  seems  to  have  been  to  exact  it  as  a  penalty 
for  his  misconduct  in  deriving,  or  seeking  to  derive,  some  pecun- 
iary advantage  from  the  trust  money,  or  in  squandering  it.  In 
all  cases  courts  of  chancery  have  exercised  a  liberal  discretion, 
according  to  the  circumstances.3  The  rule  announced  by  Chan- 
cellor Kent  cannot,  therefore,  be  considered  quite  accurate.4 

Where  a  guardian  speculates  with  his  ward's  funds,  or  em- 
ploys them  in  his  own  business,  he  must  account  for  the  profits. 
As  this  is  a  clear  breach  of  trust,  compound  interest  is  properly 


interest  should  not  be  charged  where 
there  is  no  wilful  breach  of  duty ;  nor 
where  the  ward,  on  coming  of  age, 
voluntarily  leaves  the  money  in  the 
late  guardian's  hands  without  a  de- 
mand.   142  111.  357. 

1  There  are  extreme  cases  in  which 
a  guardian  would  not  be  charged  fur 
delaying  to  invest,  even  witli  simple 
interest,  it  appealing  on  proof  that  lie 
could  not  do  so  advantageously  by  ex- 
ercising  due  diligence.  Brand  v.  Ab- 
bott, 42  Ala.  499  ;  Ashley  v.  Martin, 
50  Ala.  537.  At  the  present  day  there 
an-  banks  or  trust  companies  which 
allow  Bmall  rates  of  interesi  on  balances 

BUbject   to  check. 

1         iy  v,  Merriam,  .31   Minn.  .342  ; 
Thurston  /.'< ,  57  Wis.  104. 

i-  language    of  the    master    of 

the  roils,  in  .ion's  r.  Foxall,  i.">  E.  I-. 
&  Eq.    i  K>;    Roche    >'.  Hart,  11     Ves. 

:>h. 

4  2  Kent,  Com.  231,  and  note  il>. 
\rilli    citation    of    authorities.      And   366 

566 


Roche  r.  Hart,  11  Ves.  58  ;  Robinson 
r.  Robinson,  9  E.  L.  &  Eq.  70 ;  Light's 
Appeal,  24  Peun.  St.  180;  Kenan  v. 
Hall,  8  Ga.  417;  Greening  v.  Fox,  12 
B.  Monr.  187;  Bentley  v.  Shreve,  2 
Md.  Ch.  215  ;  Pettus  v.  Clauson,  4 
Rich.  Eq.  92;  Farwell  r.  Steen,  4G  Vt. 
678;  Finnell  v.  O'Neal,  13  Bush,  176. 
Compound  interest  should  cease  on  the 
ward's  arriving  at  full  age,  and  simple 
interest  only  be  charged  thereafter. 
Tanner  v.  Skinner,  11  Bush,  120.  And, 
pending  a  judicial  decree  upon  his  final 
balance,  one  is  under  no  obligation  to 
invest  and  should  not  be  charged  inter- 
est unless  he  lias  made  use  of  the  fund 
or  earned  interest.  Re  Mbtt,  26  N.  J. 
Eq.  50:1.  Mere  failure  of  the  guardian 
to  file  annual  accounts  does  not  render 
him  liable  for  compound  interest.  Ash- 
lev  r.  Martin,  50  Ala.  537.  He  should 
be  so  charged  only  in  cases  of  fraud   or 

11. it. nit  breach  of  trust.  Thurston 
Re,  57  Wis.  104.  And  see  Shaw  v. 
Bates,  53  Yt.  .360. 


CHAP.  VI.]       RIGHTS    AND   DUTIES   OF   GUARDIANS.        §  354  a 

chargeable.  It  would  seem  to  be  the  true  rule  in  equity,  where 
large  profits,  which  ought  to  have  gone  to  the  credit  of  the 
cestui  que  trust,  are  appropriated  by  his  trustee,  to  require  them 
to  be  turned  in  on  account;  and  to  impose  compound  interest 
instead,  with  annual  or  other  periodical  rests  as  a  penalty  only 
when  there  are  practical  difficulties  in  the  way  of  enforcing 
such  a  rule  or  as  a  beneficial  option  to  the  ward.  For  it  is 
obvious  that  in  this  country  a  guardian  can  frequently  afford 
to  pay  compound  interest  for  the  use  of  his  ward's  money,  if  he 
is  suffered  to  retain  the  full  profits  of  the  speculation  for  him- 
self.1 Where  he  loans  his  ward's  money  on  usury,  and  thereby 
forfeits  the  whole  debt,  he  is  liable  for  principal  and  interest.2 
But  this  need  not  prevent  him  from  investing  at  more  than  the 
ordinary  or  "  legal "  rate,  if  it  be  in  reality  lawful ;  and  in  some 
States  he  is  bound  to  do  so.3  It  has  been  held  that  where  a 
guardian  employs  his  ward's  money  in  a  business  which  he 
allows  his  son  to  manage,  with  a  portion  of  the  profits  as  his 
compensation,  and  the  transaction  is  free  from  fraud,  he  is  not 
chargeable  with  his  son's  share  of  the  profits.4 

While  in  many  States  the  guardian's  investment  of  his  ward's 
moneys  in  stocks  is  illegal,  and  it  must  be  his  loss  if  the  stock 
turn  out  unproductive,  the  tendency  of  the  decisions  is  to  make 
him  liable,  in  case  the  stock  proves  productive,  for  the  highest 
market  value  of  the  shares  which  he  realized  or  might  have 
realized,  and  for  all  the  dividends  he  received  from  them.5  But 
where  the  guardian's  investment  in  his  own  business  or  specu- 
lations is  followed  by  his  own  insolvency,  the  ward  gains  no 
priority  over  other  creditors  if  the  fund  cannot  be  traced  out 
and  identified ;  and  this  subjection  of  a  ward's  capital  to  utter 
loss  is  a  strong  reason  for  discouraging  it.6 

§  354  a.  Guardian  like  other  Fiduciaries.  —  Where  the  trust 
property  is  already  invested  on  securities  which  would  not  be 
sanctioned  by  the  court,  the  question  sometimes  arises  how  far 

1  Spear  v.  Spear,  9  Rich.  Eq.  184;         4  Kyle  v.  Bamett,  17  Ala.  306. 
Lowry   v.   State,  64  Ind.  421  ;  Reed  v.  5  French  v.   Currier,  47  N.  H.  88  ; 
Timmins,  52  Tex.  84.  Lamb's  Appeal,  58  Penn.  St.  142  ;  At 

2  Draper  v.  Joiner,  9  Humph.  612.  kinson  v.  Atkinson,  8  Allen,  15. 

3  Foteaux  v.  Lepage,  6  Iowa,  123  ;  6  See  70  Md.  78. 
Frost  v.  Winston,  32  Mo.  489. 

567 


§  355  THE   DOMESTIC    RELATIONS.  [PART   IV. 

it  is  the  guardian's  duty  to  call  them  in  and  invest  in  other 
securities.  In  this,  and  in  matters  of  reinvestment,  the  same 
principles  would  be  held  to  apply  as  to  general  trustees.  And 
since  such  questions  have  arisen  almost  always  under  testamen- 
tary trusts,  and  not  as  between  guardian  and  ward,  the  reader 
is  referred  to  works  on  that  subject  for  a  fuller  exposition  of  the 
law.  We  will  simply  add,  that  much  is  to  be  left  to  a  guar- 
dian's discretion,  in  this  and  all  other  respects,  where  he  man- 
ages the  property  of  his  ward  on  the  footing  of  a  trustee ;  and 
that  he  will  not  be  held  to  strict  account  for  losses  occasioned 
in  the  exercise  of  his  authority,  where  he  has  acted  bona  fide, 
and  according  to  the  best  of  his  judgment,  or  with  average  good 
judgment,  though  not  with  all  the  promptitude  and  skill  which 
the  exigencies  of  the  ward's  situation  demanded.1 


CHAPTER  VII. 

SALES   OF   THE   WAKD's   EEAL   ESTATE. 

§  355.  In  Sales  of  Ward's  Personal  Property  a  Liberal  Rule 
Applies.  —  The  nature  of  personal  property,  its  convertibility 
into  cash,  and  the  necessity  frequently  arising  for  changes  of 
investment  in  order  to  make  it  sufficiently  productive,  have 
brought  about  a  flexible  rule  so  far  as  its  purchase  and  sale  is 
concerned,  and  no  actual  conversion  takes  place.  Hence  courts 
of  chancery  at  the  present  day  assume  considerable  latitude  in 
directing  changes  from  one  species  of  personal  estate  to  another. 
Especially  liberal  must  be  the  rule  in  those  States  where  the 
trustee  i^  free  to  invest  in  any  securities  deemed  proper,  pro- 
vi'b'd  he  observes  prudence  and  good  faith.  Hence,  too,  the 
guardian  himself  may  sell  and  reinvest  his  ward's  personal 
c  tate,  and  make,  purchases,  without  a  previous  order  of  court. 
But  this  is  to  1«;  considered  rather  the  American  than  the  Eng- 

1  See  Hill,  Trustees,  and  Wharton's  notes,  379-384.     And  see  Perry,  Trusts, 
es  11,  21. 

568 


CHAP.  VII.]       SALES   OF   WARD'S   REAL   ESTATE.  §  350 

lish  rule ;  since,  as  we  have  seen  in  the  preceding  chapter,  a 
guardian's  discretion  is  strictly  limited  in  England,  and  the 
practice  of  the  chancery  courts  in  such  matters  is  to  control 
the  property. 

§  356.  Otherwise  as  to  Real  Estate  ;  Whether  Chancery  can 
sell  infant's  Lands.  —  Courts  of  chancery,  however,  have  no  in- 
herent original  jurisdiction  to  direct  the  sale  of  lands  belonging 
to  infants.  The  legislative  power  of  a  State  may  take  the  prop- 
erty of  its  citizens  in  the  exercise  of  the  right  of  eminent  domain. 
But  a  judicial  tribunal  properly  hesitates  to  assume  such  func- 
tions. The  common  law,  which  recognized  fully  the  right  of 
individuals  to  the  enjoyment  of  their  possessions,  and  particu- 
larly of  real  estate,  without  disturbance,  appears  to  have  treated 
lands  belonging  to  infants  as  property  which  should  be  pre- 
served intact  until  the  owner  became  of  sufficient  age  to  dispose 
of  it  according  to  his  own  pleasure.  Timber  might  be  felled, 
and  mineral  ore  dug  out  and  carried  away  ; J  but  though  such 
acts  constituted  a  technical  conversion  of  real  estate,  they  were 
in  effect  but  a  mode  of  enjoyment  of  the  rents  and  profits,  and 
the  guardian  was  obliged  to  account  for  these  products  of  the 
soil  to  the  infant  owner.  Sales  of  the  ward's  lands  were  author- 
ized in  certain  cases,  as  where  there  were  debts  to  be  paid,  en- 
cumbrances to  be  discharged,  judgments  to  be  satisfied,  or 
necessary  repairs  to  be  made  upon  the  premises.  But  in  such 
cases  the  court  of  chancery  violated  no  rights  of  ownership; 
since  it  is  the  universal  doctrine  that  property  can  only  be  held 
subordinate  to  the  obligation  of  paying  one's  debts.2  Mortgages 
were  in  rare  instances  permitted.3     Courts  of  chancery  went  no 


1  But  see  Stoughton's  Appeal,  88  3  lb.  When  an  infant  was  ahso 
Penn.  St.  198.  lately  entitled,  subject  to  certain  trusts, 

2  See  Shaffner  v.  Briggs,  36  Ind.  55.  to  the  beneficial  interest  in  real  estate, 
On  application  for  maintenance,  chau-  the  legal  estate  being  in  trustees, 
eery  has  jurisdiction  to  charge  ex-  chancery  directed  the  raising  of  money 
penses  of  past  maintenance  and  costs  by  means  of  a  mortgage  to  defray  the 
on  the  infant's  land.  In  re  Howarth,  cost  of  necessary  repairs.  <  Jackson 
L.  R.  8  Ch.  415.  ^\nd  see  De  Witte  v.  Re,  21  Ch.  D.  786.  See  the  scanty 
Palin,  L.  R.  14  Eq.  251  ;  Nunn  v.  Han-  precedents  for  such  mortgages  here 
cock,  L.  R.  6  Ch.  850,  as  to  jurisdiction  cited  ;  prospective  charges  not  seem- 
in  sale  of  reversionary  interest  of  an  ing  to  have  been  sanctioned  by  such 
infant;  §§340,351.  proceedings. 

569 


§  357  THE   DOMESTIC    RELATIONS.  [PART   IV. 

further,  except  when  authorized  by  statutes.  They  preferred 
that  the  infant's  property  should  remain,  while  guardianship 
lasted,  impressed  with  its  original  character.  In  the  settlement 
of  estates,  persoual  property  was  to  be  taken  to  pay  what  was 
needful  for  support  and  maintenance,  rather  than  lands.  Not 
even  purchases  of  real  estate  were  favorably  regarded.  And 
when  a  sale  became  necessary,  the  real  estate  was  not  resorted 
to  until  other  means  of  raising  money  had  failed ;  nor  was  a 
general  sale  of  the  lands  ordered  whenever  a  partial  sale  would 
suffice. 

On  this  subject  Lord  Hardwicke  observed  as  follows,  in  Tay- 
lor v.  Philips : l  "  There  is  no  instance  of  this  court's  binding 
the  inheritance  of  an  infant  by  any  discretionary  act  of  the 
court.  As  to  personal  things,  as  in  the  composition  of  debts,  it 
has  been  done,  but  never  as  to  the  inheritance ;  for  that  would 
be  taking  on  the  court  a  legislative  authority,  doing  that  which 
is  properly  the  subject  of  a  private  bill."  This  language  received 
the  subsequent  approval  of  Lord  Chancellor  Hart2  It  has  also 
been  quoted  as  the  recognized  law  in  this  country.3 

§357.  Same  Subject;  English  Chancery  Doctrine. — Hence, 
too,  whenever  the  court  of  chancery  has  permitted  purchases 
of  lands,  the  infant's  right  to  affirm  or  disaffirm  on  reaching 
majority,  or,  as  chancery  sometimes  expresses  it,  to  show  cause, 
has  been  reserved.  Lord  Eldon  lays  down  with  great  caution 
the  power  of  the  court  in  changing  the  infant's  property,  so  as 
not  to  affect  the  infant's  power  over  it  when  he  comes  of  age.4 
And  whatever  may  be  the  rule  where  there  is  some  claim  or 
debt  to  be  satisfied,  it  appears  that  chancery  will  decline  order- 
ing a  sale  of  land  belonging  to  an  infant  merely  upon  the 
ground  that  the  sale  would  be  beneficial  to  him  ;  while  in  any 
case,  if  there  be  a  material  error  in  substance,  and  not  in  form 
alone,  a  purchaser  may  object  to  the  title,  and  the  court  will 
discharge  him  from  his  contract.6 

1  2  Vfs.  23.  180;    Ex   parte   Jewett,    16    Ala.  40!)  : 

2  Russell  v.  Russell,  1  Moll.  525.  Thompson  v.  Brown,  4  Johns.  Ch.  <>l!); 
•"•  Rogers  v.   Dill,  B  Hill,  415.    See    Faulkner  v.  Davis,  18  Gratt.  651. 

also  the  learned  and  elaborate  opinion         4  Ware  v.  Polhill,  11  Ves.  278  ;  Ex 
of  the   court,  with  citation  of  English    parte  Phillips,  19  Ves.  122. 
authorities,  in  Williams's  Case,  3  Bland,         6  See  1  Pan.  Ch.  Pract.  3d  Am.  cd., 

570 


CHAP.  VII.]       SALES    OF    WARD'S   REAL    ESTATE.  §  359 

One  objection  to  conversions  of  property,  namely,  that  the 
laws  of  inheritance  are  not  the  same  in  real  and  personal  estate, 
became  obviated  in  equity  by  treating  the  proceeds  throughout 
as  impressed  with  the  character  of  the  original  fund  ;  a  rule  of 
large  application  botli  in  England  and  America.1  Another  ob- 
jection, upon  which  English  writers  have  dwelt  at.  length,  arose 
under  the  law  of  testamentary  dispositions,  which  allowed  in- 
fants to  give  and  bequeath  personal  estate,  males  at  the  age  of 
fourteen,  and  females  at  twelve,  while  real  estate  could  not  be 
devised  under  twenty-one.  Here  again  chancery  decreed,  when- 
ever a  conversion  was  authorized,  that  the  right  of  testamentary 
disposition  should  not  be  thereby  changed.  The  wills  act  of 
1  Vict.  c.  26,  dispenses  with  this  distinction  in  testamentary 
dispositions  altogether.2  And  this  latter  objection  never  could 
have  arisen  in  the  courts  of  many  of  the  United  States. 

§  358.  Civil-Law  Rule  as  to  Sales  of  Ward's  Lands. —  Guar- 
dians and  tutors  of  minors  at  the  civil  law  had  power,  under  the 
direction  of  the  proper  court,  as  it  would  appear,  to  convey  the 
estates  of  their  wards.3 

§  359.  Sale  of  Ward's  Lands  under  Legislative  Authority  com- 
mon in  the  United  States.  —  Legislative  authority  may  intervene 
to  direct  the  absolute  sale  of  an  infant's  lands.  And  since  the 
ownership  of  real  estate  in  this  country  is  vested  with  compara- 
tively little  of  that  sanctity  and  importance  which  the  ancient 
laws  of  primogeniture  and  feudal  tenure  threw  about  it,  and 
inasmuch  as  purchases  and  sales  of  land  are  fast  becoming 
matters  of  every-day  occurrence,  the  legislatures  of  most  of  the 
United  States  have  seen  fit  to  enact  laws  for  facilitating  the 
sales  of  real  estate  by  fiduciary  officers.     These  laws  are  com- 

159,  160;  Calvert  v.  Godfrey,  6  Beav.  524;    linger  v.   Huger,  3  Desaus.    18. 

106.     Jurisdiction  under  a  recent  stat-  But  this  is  not  necessarily  the  case  at 

ute  considered  in  [1 893]  1  Ch.  1 53.  law.     And  such  proceeds  lose  their  ori- 

1  Wheldale  v.  Partridge,  5  Ves.  396;  giual  character  and  become  personalty 

Macphers.   Inf.   284 ;  Story,  Eq.  Juris,  on  their  first  transmission,   though  to 

§§  790-793,    and  authorities   cited  ;    2  an    infant.     Dyer   v.  Cornell,  4  Barr, 

Kent,  Com.    230,   and   n. ;    Forman   v.  359. 

Marsh,  1  Kern.  544;  Horton  v.  McCoy,         2  Macphers.  Inf.  278,  and  cases  cited. 

47  N.  Y.  21 ;  Fidler  v.  Higgins,  6  C.  E.  See  Hill  on  Trustees,  396,  n. 
Green,  138  ;  Holmes's  Appeal,  53  Penn.  3  Menifee  v.  Hamilton,  32  Tex.  495. 

St.  339  ;  March  v.  Berrier,  6  Ired  Eq. 

571 


§  360  THE    DOMESTIC    RELATIONS.  [PART    iV. 

paratively  recent,  and  not  altogether  uniform  in  their  provisions. 
But  in  most  essential  features  they  are  alike.  They  constitute 
a  permanent  system.  They  may  apply,  not  to  guardians  alone, 
but  also  to  trustees,  executors,  and  administrators.  As  cases 
are  constantly  arising  under  these  laws,  we  shall  here  briefly 
notice  some  of  the  principles  which  have  a  special  bearing  upon 
the  sales  of  real  estate,  so  far  as  guardians  are  concerned,  with- 
out deeming  it  necessary  to  make  a  minute  analysis,  since  such 
statutes  are  purely  local  and  subject  to  local  variations. 

§  360.  American  Statutes  on  this  Subject  considered.  —  Our 
American  statutes  relative  to  the  sale  of  lands  belonging  to 
infants  have  the  following  points  in  common  :  First,  an  appli- 
cation to  the  court  on  the  infant's  behalf  upon  which  the  order 
of  sale  issues.  Second,  a  special  bond  to  be  filed  by  the  guardian. 
Third,  the  formal  sale  of  the  land,  usually  at  public  auction. 
Fourth,  the  execution  of  the  deed  to  the  purchaser.  Fifth,  a 
proper  disposition  of  the  proceeds  of  the  sale.  And  in  some 
States  a  judicial  confirmation  of  the  sale  is  required.  The  judi- 
cial order  of  sale  is  frequently  termed  a  license ;  and  the  exact 
method  of  procedure  is  indicated  in  the  statutes  themselves. 

These  statutes,  we  may  add,  not  unfrequently  limit  the  pur- 
pose for  which  such  sales  may  be  made  :  as,  for  instance,  when 
the  ward  has  no  other  means  for  his  education  and  support ;  or, 
again,  to  pay  proper  debts  ;  or  sometimes  for  the  purpose  of  in- 
vesting the  proceeds  so  as  to  derive  an  income  more  readily. 
And  again,  the  guardian  to  be  authorized  is  the  probate,  not  the 
natural,  guardian,  who  besides  giving  the  usual  bond  of  guar- 
dianship is  likewise  required  to  give  the  special  bond  of  which 
we  speak  for  the  purposes  of  the  sale.1     And  the  legislative 

1  See  Morris  v.  Morris,  2    MeCart.  order  to  sell,  when  he  is  not  B.'s  guar- 
230;    Shanks  ?•.  Scamonfls,    24     Iowa,  dian,   the    order   is  void    and    may  be 
131  ;   People  v.  Circuit  Judge,  1!>  Midi,  impeached  collaterally.  Crier's  Appeal, 
:;(';,]   344       Nor  is   the  husband  101  Penn.  St.  412.   Sale  cannot  lie  made 
of  an  infant  a  guardian,    under    such  after  the  ward's   death.     Kobertsou  v. 
Statute,  who  can  be  thus  authorized  to  Coates,  G5  Tex.  37.      Where  the  guar- 
Bell,     Dengi  chart  v.  Cracraft,  •'«'>  Ohio  dian'a  appointment  was  absolutely  void, 
Bt  549.     a  jale  will  not  be  authorized  the  sale  is  likewise   void.      Dooley  v. 
after  the  guardianship  has  ended.    40  Bell,  87  Ga.  74.    But  a  merely  irreg- 
219.     [f  A.,  upon   his  represents/-  alar  appointment    is  not  to  be  assailed, 
tion  thai  he  it  B.'a  guardian,  obtains  an  153  Penn.  St.  493;  §  308. 
572 


CHAP.  VII.]         SALES    OF    WARDS    REAL   ESTATE.  §  360 

provision  sometimes  extends  to  sales  of  reversionary  or  equi- 
table interests  of  minors  ;  or,  again,  is  limited  to  property  in 
which  the  minor  has  the  legal  title. 

As  to  the  disposition  of  the  proceeds,  the  guardian's  conduct 
is  to  be  regulated  by  the  terms  of  his  license.  If  he  was  per- 
mitted to  sell  for  the  purpose  of  maintenance  and  support,  the 
moneys  obtained  must  be  so  appropriated;  if  for  the  payment  of 
certain  debts,  those  debts  must  be  paid  ;  if  for  investment  in 
other  securities,  he  must  invest  therein  ;  and,  unless  the  court 
leaves  the  investment  to  his  own  discretion,  he  is  bound  to  invest 
as  it  orders.  Any  other  course  of  conduct  will  subject  him  to 
penalties  for  breach  of  his  special  bond.  He  is  not  justified  in 
appropriating  the  proceeds  of  the  sale  for  the  above  objects 
generally,  however  reasonable  it  might  be  to  do  so  on  other  con- 
siderations ;  but  for  the  particular  object  contemplated  by  the 
court  in  granting  the  license.1  Not  even  the  ward's  assent  to 
his  disposition  of  the  proceeds  can  exonerate  the  guardian  from 
responsibility  to  other  parties  immediately  interested,  for  such 
losses  as  may  occur  by  reason  of  his  disregard  of  this  rule.2  Nor 
is  his  special  bond  discharged  by  the  fact  that  he  produced  the 
proceeds  of  the  sale  in  court,  and  was  then  ordered  to  withdraw 
them  ;  for  the  guardian  and  not  the  court  is  the  proper  custodian 
of  the  fund.3  Any  person  not  the  guardian,  authorized  to  sell 
in  such  cases,  is  held  to  account  in  like  manner.4 

The  guardian's  deed  made  under  such  orders  of  court  has 
usually  only  the  effect  of  a  quitclaim,  except  so  far  as  he  may 
have  covenanted  on  his  part  that  he  has  complied  with  the 
statute  requisites  and  that  he  is  the  guardian  duly  authorized ; 
and  in  general  he  cannot  bind  his  ward  by  any  covenants  of 
warranty  in  the  deed,  though  if  he  choose  to  warrant  he  may 
bind  himself.  The  purchaser  in  such  sales  usually  takes  all 
risks  of  title  except  as  concerns  the  authority  and  good  faith  of 
the  guardian  in  the  premises.5  But  it  is  held  that  caveat  emptor 
does  not  apply  to  the  purchaser  so  as  to  require  him  in  equity  to 

1  Strong  v.  Moe,  8  Allen,  125.  6  State  v.  Clark,  28  Ind.  138;  Byrd 

2  Harding  v.  Larned,  4  Allen,  426.        v.  Turpin,  62    Ga.   591  ;     Holyoke    v. 
8  State  v.  Steele,  21  Ind.  207.  Clark,  54  N.  H.  578. 


Pope  v.  Jackson,  11  Tick.  113. 


573 


§  861  THE   DOMESTIC    RELATIONS.  [PART    IV. 

take  the  title  where  actual  representations  of  the  guardian  as  to 
the  goodness  of  the  title  turn  out  untrue.1 

§  361.  Same  Subject;  Essentials  of  Purchaser's  Title.  — The 
most  difficult  question  which  arises  under  the  statutes  relating 
to  sales  of  the  infant's  lands,  is  that  of  the  essentials  of  the  pur- 
chaser's title.  In  what  cases  may  the  guardian's  sale  be  set 
aside  ?  "What  statute  provisions  shall  be  regarded  as  impera- 
tive, and  what  as  merely  directory  ?  How  far  will  irregularities 
avoid  the  guardian's  acts,  and  who  is  at  liberty  to  impeach  them  ? 
One  proposition  may  be  laid  down  at  the  outset.  It  is  that, 
inasmuch  as  the  authority  of  the  guardian  to  make,  and  of  the 
court  to  permit,  an  absolute  sale  of  the  infant's  lands,  is  limited 
to  the  grant  of  powers  conferred  by  the  legislature,  the  terms  of 
such  grant  should  be  carefully  followed.  Sales  made  in  utter 
disregard  of  the  precautions  wisely  interposed  by  law  are  abso- 
lutely worthless.2  And  furthermore  there  are  constitutional 
constraints  in  a  majority  of  our  States  upon  corrections  of  void 
and  irregular  sales  of  this  character  by  a  special  act  of  legisla- 
tion.3 

On  the  other  hand,  it  must  be  admitted  that  there  is  always 
a  hardship  imposed  upon  a  bona  fide  purchaser,  whose  rights 
once  apparently  vested  are  afterwards  pronounced  null.  If  the 
purchaser  took  the  child's  lands  by  collusion  and  fraud,  or,  being 
the  guardian  himself,  abused  his  trust  to  secure  his  own  profit, 
equity  might  justly  suffer  the  transaction  to  be  set  aside  alto- 
gether. But  a  stranger  who  pays  his  purchase-money  honestly 
and  fairly  ought  not  to  be  compelled  to  suffer  for  mere  irregu- 
larities under  the  law.  For  such  fraudulent  acts  of  the  guardian 
as  necessarily  follow  the  consummation  of  a  bargain  —  as  the 
misapplication  of  the  purchase-money  —  it  is  clear  that  this 
purchaser  is  not  liable.4  A  sale,  too,  if  valid  when  made,  is  not 
rendered  invalid  by  the  guardian's  subsequent  resignation  and 
the  appointment  of  another  person  in  his  place.5     In  various 

i   Black  v.  Walton, 32  Ark.  821.  4  Fitzgibbon  v.  Lake,  29  111.  165; 

•-<  K,    parte  Guernsey,  21    111.  443;  Kendrick  '■.   Whculer,   85   Tex.    247; 

i   v    Churchill,  18  B.  Monr.  387;  18Col.468. 
Patton  v.  Thompson,  2  Jones  Eq.  411 '         b  llcrudou    v.    Lancaster,   6  Bush, 

M      in  v.  Wait,  i  Scam.  127.  483. 
ftoche  v.  Waters,  72  Md.  264. 

574 


CHAP.  VII. J        SALES    OF    WARD'S   REAL  ESTATE.  §  361 

States  confirmation  of  the  sale  by  the  court  is  not  a  prerequisite 
to  divesting  the  ward's  title  ; 1  but  in  others  it  appears  to  be. 
As  to  those  acts  which  precede  the  consummation  of  a  bargain 
the  purchaser  is  put  on  his  guard,  unless  from  the  very  nature 
of  the  case  they  could  not  have  come  to  his  observation.  Irregu- 
larities or  omissions  to  comply  with  statute  formalities  seem  to 
range  themselves  in  three  classes :  those  which  are  immaterial ; 
those  which  will  render  a  sale  voidable  by  certain  parties  inter- 
ested ;  those  which  go  to  the  foundation  of  the  sale  and  render 
it  void  altogether.  And  according  to  the  judicial  construction  of 
such  irregularities  and  omissions,  under  the  statutes  and  practice 
of  the  particular  State,  will  the  purchaser's  title  be  determined. 

Where  the  sole  authority  of  the  guardian  is  derived  from  the 
statute,  courts  will  reluctantly  declare  any  part  of  that  statute 
immaterial,  except  in  the  sense  that  the  responsibility  for  non- 
compliance is  thrown  upon  the  guardian  or  the  court,  and  not 
upon  the  purchaser.  Informalities  in  the  recitals  of  a  bona  fide 
deed,  defective  notices,  the  insertion  of  irrelevant  or  superfluous 
matter  in  the  order  of  sale,  errors  of  the  guardian  in  his  allega- 
tions or  of  the  court  in  issuing  process,  have  been  in  this  sense 
ruled  as  immaterial.  But  such  cases  are  generally  not  so  much 
of  statutory  direction  as  of  j  udicial  rule  and  common-law  anal- 
ogies in  supplying  the  intention  of  the  legislature  where  the 
statute  was  silent.  The  general  principle  prevails,  that  it  is  wise 
policy  to  sustain  judicial  sales,  and  that  they  should  not  be 
declared  void  or  voidable  for  slight  defects.2 

Of  mere  irregularities  advantage  may  often  be  taken  by  direct 
proceedings  concerning  the  sale,  as  by  appeal,  or  by  a  refusal 
to  consummate  the  sale  ;  while,  to  attack  the  completed  sale  and 
a  purchaser's  title  collaterally,  statute  fundamentals  should  have 
been  disregarded. 

As  to  irregularities  or  omissions  which  will  render  a  sale  void- 
able, either  the  infant  heir  or  some  othef  person  in  interest  has 
been  unfairly  dealt  with.  Here  the  privilege  is  accorded  to  the 
party  or  parties  wronged,  of  having  the  sale  set  aside  on  appeal 

i  §  361,  notes.  Thornton    v.    McGrath,    1    Duv.    349; 

2  Fitzgibbon  v.  Lake,   29  111.  165;     Ackley  v.  Dygert,  33  Barb.  176. 
Cooper  v.  Sunderland,   3    Iowa,    114; 

575 


§  361  THE   DOMESTIC    DELATIONS.  [PART   IV. 

or  by  direct  proceedings  instituted  for  that  purpose ;  but  not  in 
a  collateral  manner.  "We  need  not  here  speak  of  the  infant's  right 
of  election  in  certain  cases  on  attaining  majority.1  Where  in 
general  the  guardian  obtained  his  license  without  duly  notifying 
a  person  in  interest,  such  person  is  allowed  to  have  the  sale  set 
aside.  The  purchaser's  title  is,  however,  good  in  the  mean  time. 
Nor  can  any  one  take  advantage  of  the  defective  proceedings  but 
those  whose  interests  were  injuriously  affected.  A  special  limit 
is  frequently  set  by  law  to  proceedings  of  this  kind,  for  the  sake 
of  quieting  titles ;  otherwise,  the  ordiuary  statute  of  limitations 
seems  to  apply.2  Certain  defects  in  a  sale,  too,  are  in  some  States 
(but  not  in  others)  treated  as  cured  by  the  court's  required  con- 
firmation of  the  sale ;  and  this  more  particularly  where  it  is 
shown  that  the  sale  was  beneficial  to  the  ward.3  Presumptions 
in  short  are  in  favor  of  the  regularity  of  all  probate  court  pro- 
ceedings within  each  jurisdiction  ;  and  such  proceedings  should 
seldom  be  avoided  when  collaterally  attacked  unless  it  is  shown 
affirmatively  that  there  was  no  actual  jurisdiction.4 

But  as  to  irregularities  or  omissions  which  render  the  sale 
void  altogether,  there  is  some  confusion  of  authority.  The 
principle  itself  is  a  clear  one,  but  in  the  application  commonly 
made  seems  much  difficulty.  The  license  of  a  court  plainly  with- 
out competent  jurisdiction  would  be  void.  But  where  the  court 
has  jurisdiction  (and  this  jurisdiction  is  usually  vested  originally 
in  county  courts  having  probate  jurisdiction5)  it  is  material  to 
inquire  what  provisions  of  the  statute  are  positive  and  what  are 
declaratory.  In  some  cases,  a  very  strict  rule  seems  to  have 
been  pursued ;  in  others,  the  construction  has  been  liberal  in 
favor  of  the  purchaser's  rights.  The  execution  of  the  statute 
bond  would  seem  to  be  in  general  an  essential,  though  some 

1   Infra,  c.  9;  Part  V.  c.  5.  Blackmail  v.  Baumann,  22   Wis.  611  ; 

-   Kimball    v.   Fisk,  39    X.  II.    110;  Pursley  v.  Hayes,  22    Iowa,   11;  Gager 

Bryan  v.  Manning,  6  Jones,  .'534  ;   Field  v.  Henry,  5  Sawyer  C.  C.  237  ;  90  Tenn. 

v.  Goldsby,  28  Ala.  21S;    Dutcher  v.  445. 

Hill.  29   Mo.  271  ;  Gilmore  v.  [lodgers,         4  See  47  Kan.  58;  129  Ind.  529;  51 

■II  Penn.  St.   120;  Marvin  v.  Schilling,  Ark.  338. 

12  Mich.  356;  Kenniston  v.    Leighton,  6  As  to  courts  of  common  pleas,  for 

4.(  N    II  such  jurisdiction,  sec  McKeever  r.  Ball, 

•     Rmerj    v.   Vroman,    19    Wis.  71  Ind.  398;  Foresmaui?.  Haag, 36  Ohio 

McGee,4  Bush,  527;  St.  102. 
576 


CHAP.   VII. j        SALES    OF    WARD'S    REAL   ESTATE. 


§  360 


States  do  not  so  regard  it;  so,  too,  a  public  sale  at  the  time  set; 
sometimes  the  filing  of  an  oath;  the  offer  of  such  land  as  the 
license  designates  and  none  other;  the  delivery  of  a  deed  to  the 
purchaser  and  receipt  of  the  purchase-money.  And  yet  the 
guardian's  failure  to  comply  with  certain  of  these  formalities 
does  not  invariably  affect  the  purchaser's  title.  The  difficulty  is 
set  at  rest  in  some  States  by  a  statute  provision  as  to  the  essen- 
tial particulars  which  a  bona  fide  purchaser  is  bound  to  notice.1 
We  can  only  add  that,  in  States  where  the  legislature  supplies 
no  such  provision,  a  purchaser  cannot  feel  safe  in  disregarding 
any  forms  of  procedure  prescribed  in  so  many  words ;  and  that, 
the  more  explicit  the  language  of  the  statute,  the  more  careful 
he  should  be  in  insisting  on  the  prescribed  course,  especially  as 
to  the  sale  and  the  method  of  conducting  it.2     There  might  be 


1  Gen.  Sts.  Mass.  c.  102,  §§  37-48 ; 
Mohr  v.  Tulip,  51  Wis.  487. 

2  Williams  v.  Morten,  38  Me.  47; 
Owens  v.  Cowan,  7  B.  Monr.  152; 
Palmer  v.  Oakley,  2  Doug.  433  ;  Stall 
v.  Macalester,  9  Ham.  19;  Blackman 
v.  Baumann,  22  Wis.  611  ;  Strouse  >: 
Drennan,  41  Mo.  289  ;  Brown  v. Christie, 
27  Tex.  73  ;  Frazier  r.  Steenrod,  7  Iowa, 
339. 

Due  notice  to  those  interested  in 
the  sale  is  essential.  Knickerbocker 
v.  Knickerbocker,  58  111.  399  ;  Haws 
v.  Clark,  37  Iowa,  355;  Williamson  v. 
Warren,  55  Miss.  199.  But  the  pro- 
ceeding is  in  rein,  in  the  ward's  interest ; 
and  hence  notice  to  heirs  is  not  always 
insisted  upon  as  necessary.  Mulford  v. 
Beveridge,  78  111.  455  ;  Gager  v.  Henry, 
5  Sawyer  C.  C.  237  ;  Mohr  v.  Mahierre, 
101  V.  S.  417.  Xor  the  appointment  of 
a  guardian  ad  litem.  18  Col.  463.  But 
notice  to  the  ward  is  usually  requisite. 
Rankin  v.  Miller,  43  Iowa,  11  ;  Kennedy 
v.  Gaines,  51  Miss.  625  ;  Musgrave  v. 
Conover,  85  111.  374.  Though  the  ward 
need  not  join  in  the  petition.  Cole  v. 
Gourlay,  79  N.  Y.  527.  Jurisdiction  is 
essential.  In  some  States  the  probate 
court  has  no  authority  to  order  a  sale. 
Summer  v.  Howard,  33  Ark.  490;  see 
?oresman  v.  Haag,  36  Ohio  St.  102. 
37 


The  statute  which  prescribes  in  what 
county  application  should  be  made  for 
leave  to  sell  must  be  regarded.  Spell- 
man  v.  Dowse,  79  111.  66;  Mohr  v. 
Tulip,  51  Wis.  487.  Advice  of  a  fam- 
ily meeting  is  an  element  in  Louisiana 
practice.  33  La.  Ann.  1211.  There  is 
no  jurisdiction  to  authorize  a  mortgage 
under  a  guardian's  petition  which  asks 
for  a  sale.  McMnnnis  v.  Rice,  48  Iowa, 
361.  The  notice  of  public  sale  with  a 
wrong  time  or  no  time  stated  is  fatally 
defective.  Lyon  v,  Vanatta,  35  Iowa, 
521.  But  cf.  Spring  v.  Kane,  86  111.  580. 
A  sale  bond  is  essential  in  some  States, 
while  in  others,  especially  where  con- 
firmation is  made  by  the  court,  its 
omission  does  not  invalidate  the  sale. 
Stewart/-.  Bailey,  28  Mich.  251  ;  Blauser 
v.  Diehl,  90  Penn.  St.  350 ;  47  Kan.  58  ; 
McKeever  v.  Ball,  71  Ind.  398  :  42  ( >hio 
St.  454;  81  Ky.  127;  23  Fed.  R,  645. 
But  informality  in  the  bond  is  not 
necessarily  fatal.  55  Wis.  39.  See 
Watts  v.  Cook,  24  Kan.  278  ;  Cuyler  v. 

Wayne,   64   Ga.    78.     A   special   1 1 

covers  only  a  sale  under  the  specific 
license.  84  Wis.  537.  Cf.  46  Fed.  II. 
256.  As  to  requisites  and  sufficiency  of 
a  petition  for  leave  to  sell,  there  are. 
many  decisions  of  little  more  than  local 
consequence.     Discretion  of  a  county 

577 


361 


THE   DOMESTIC    RELATIONS. 


fPAET   IV. 


defects  to  urge  directly  for  avoiding  such  a  sale  which  could  not 
enable  the  sale  to  be  attacked  collaterally.  The  guardian's  ten- 
der of  a  deed  with  misrecitals  of  importance  need  not  be  accepted 
by  the  party  purchaser.1 

The  purchaser  may  sometimes  maintain  a  bill  in  equity  for 
rescinding  the  sale  on  account  of  illegality.  But  he  must  offer 
to  surrender  possession  and  to  account  for  the  use  and  occupa- 
tion of   the  premises.2     Defective    proceedings   are   sometimes 


court  in  ordering  a  sale  may  be  con- 
trolled usually  on  appeal.  A  defective 
petition  does  not  usually  affect  the 
court's  jurisdiction.  And  see  57  Tex. 
62;  48  Mich.  407. 

There  has  been  some  conflict  of 
cases  as  to  whether  a  sale  is  valid  with- 
out the  statutory  notice  to  persons  in 
interest.  But  the  present  inclination 
upholds  the  sale  where  a  proper  petition 
was  presented  to  the  proper  court,  thus 
giving  that  court  jurisdiction  in  rem. 
The  sale  may  then  bind  the  guardian 
and  his  ward,  and  all  having  notice  and 
assenting,  even  though  it  might  not 
bind  parties  adversely  interested  having 
no  notice.  For  the  notice  is  not  to  give 
jurisdiction  of  the  subject-matter,  but 
to  get  jurisdiction  of  persons  adversely 
interested.  Mohr  v.  Tulip,  51  Wis.  487, 
and  cases  cited  ;  Nott  v.  Sampson  Man. 
Co.,  T42  Mass.  479. 

The  place  of  sale  need  not  be  desig- 
nated. Williams  >•.  Warren,  55  Miss. 
199.  There  may  be  a  merely  defective 
notice,  so  as  not  to  render  the  sale  void 
a-  in  case  DO  notice  were  given.  Lyon 
V.  Vanatta,  .'{5  Iowa,  521  ;  59  [owa,  533  ; 
49  Minn.  210.  A  limit  of  sale  by  ap- 
praisement or  otherwise  is  sometimes 
set.  Fraser  v.  Zylicz,  29  La.  Ann.  5.34. 
■•■  requirement  of  publication  for 

BUCCeSBive  weeks,  bow  fulfilled,       Dexter 

p.Cranston,  41  Mich.  -its.  As  to  ad- 
journing the  Bale,  see  Gager  ».  Henry, 
5  Sawyer  C.  C.  237.  Defective  recitals 
in  a  guardian's  deed  ;  whether  the  deed 
in ii - 1  be  cancelled.  Bobb  >••  Barnum, 
.'.'i  fcfo  394.  Succinct  statements  in 
such  .I.  ed  are  sufficient.  Worthington 
'.   Dunkin,  41    Ind.  515.    Where  the 

578 


court  has  jurisdiction,  and  makes  an 
order  for  the  sale,  a  bona  fide  but 
irregular  arrangement  by  the  guardian 
with  the  purchaser,  as  to  delivery  of 
deed  to  carry  out  the  terms  of  the  sale, 
will  not  readily  be  regarded  as  inval- 
idating the  sale.  Mnlford  v.  Beveridge, 
78  111.  455.  The  act  of  conveyance  is 
rather  official  than  personal,  and  may 
be  carried  out  by  a  successor  to  the 
guardian  who  sold.  Lynch  v.  Kirby,  36 
Mich.  238.  A  ward  had  a  void  decree 
of  sale  set  aside  where  his  guardian 
misappropriated  the  proceeds  and  was 
not  compelled  to  refund  the  purchase- 
money,  in  Beynolds  v.  McCurry,  100 
111.  356.  As  to  limitation  of  ward's 
disability  to  set  aside,  see  79  Ind. 
188. 

A  formal  order  of  court  confirming 
the  sale  is  not  needful  usually  to  give 
it  validity  ;  but  local  statntes  differ.  57 
Tex.  62;  59  Iowa,  533;  45  Ark.  41  ; 
113  Mo.  175;  85  Mo.  464  ;  97  Cal.  360. 
What  such  order  adjudicates,  see  30 
Minn.  107.  Though  confirmation  ought 
to  precede  the  delivery  of  a  deed,  a 
deed  previously  delivered  is  good  after 
confirmation.  Hammann  v.  Mink,  99 
Ind.  279.  Confirmation  of  a  sale  where 
no  deed  was  executed,  but  the  price 
was  paid  and  possession  delivered,  gives 
at  least  an  equitable  title.  54  Ark. 
480. 

1  44  Minn.  250.  The  guardian's 
tender  of  a  deed  with  proper  recitals 
and  covenants  should  lie  accepted. 

-  Shipp  '•.  Wheeless,  33  Miss.  646; 
Loyd  '•.  Malone,  23  111.  43;  Anderson 
>\  Lay  ton,  3  Bush,  87. 


CHAP.    VII.]      SALES   OF   WARD'S   REAL   ESTATE.  §  362 

cured  by  the  court,  so  as  to  compel  liim  to  abide  by  the  terms  of 
the  purchase.  Mere  irregularities  in  a  guardian's  sale  not  affect- 
ing the  jurisdiction  and  the  validity  of  a  title  do  not  justify  the 
purchaser  in  refusing  to  complete  the  purchase.1  He  is  pre- 
sumed to  have  knowledge  of  all  judicial  limits  as  to  price  and 
other  essentials  on  record  in  the  license  proceedings.2  And  it 
seems  that  he  may,  by  his  laches,  forfeit  his  right  of  objection 
to  the  sale.3  Whatever  the  favor  to  be  shown  to  a  bona  fide 
purchaser  without  notice  of  fatal  defects  in  the  title  or  misap- 
propriation of  the  proceeds,  one  who  connives  at  a  fraud  upon 
the  ward  may  be  held  accountable  for  the  trust  property  or  its 
proceeds.4  And  a  court  may  refuse  to  confirm  or  may  set  aside 
a  sale  because  of  gross  inadequacy  of  price  or  other  unfairness  to 
the  ward's  interest.5  A  guardian  in  general  can  only  safely 
accept  money  in  payment  of  the  purchase  price.6 

§  361  a.  Other  Statute  Provisions  ;  Mortgage,  &c.  —  Mort- 
gages are  sometimes  authorized  on  an  infant's  lands,  under  statute 
proceedings  analogous  to  those  empowering  a  sale;7  or  the  sale 
of  an  undivided  interest  of  a  minor  in  land,  as  tenant  in  common 
or  otherwise.8  Or  a  guardian's  sale  is  made  subject  to  an  exist- 
ing mortgage.9  In  all  such  cases  the  guardian  should  keep  within 
the  scope  of  judicial  and  legislative  permission.10 

§  362.  American  Statutes  ;  Sales  in  Cases  of  Non-Residents. 
—  Where  a  non-resident  guardian  applied  for  the  sale  of  real 

1  Beidler  v.  Friedell,  44  Ark.  411;  See  161  Mass.  525,  as  toother  considera- 
29  Fed.  R.  736.  tions  as  part  of  the  purchase  price. 

2  95  Mich.  244.  i  Battell  v.   Torrey,  65   N.  Y.  294 ; 

3  Cooper  v.  Hepburn,  15  Gratt.  551.  Noble  v.  Runyan,  85  111.  618. 

4  See  Wallace  v.  Brown,  41  Ind.  8  Price,  Matter  of,  67  N.  Y.  231 ; 
436,  where  a  purchaser  paid  to  the  Schafer  v.  Luke,  51  Wis.  669 ;  Brenham 
guardian  the  hitter's  individual  notes  v.  Davidson,  51  Cal.  352;  Fitzpatrick 
in  settlement  of  his  purchase.     So,  too,  v.  Beal,  62  Miss.  244. 

53   Ark.  224.     And  see  post,  c.  9.     A  9  As  to  the  effect  of  such  a  sale,  see 

collusive    sale    between    administrator  Lynch  v.  Kirby,  36  Mich.  238.  And  see 

and  guardian  to  the  detriment  of  the  §  351.     Guardian's  petition  to  court  for 

ward  and  heir,  may  be  avoided  by  the  leave  to  mortgage  should  be  in  writing, 

latter.     90  Ga.  550.  and  in  Rhode  Island  he  cannot  give  a 

Rents  and  profits  under  an  irregular  power  of  sale  in  such  mortgage.  Barry 

sale  must  be  accounted  for  when  the  v.  Clarke,  13  R.  I.  65. 
sale  is  set  aside.     53  Ark.  224.  10  Kingsbury    v.     Powers,    131     111 


5  Mitchell  v.  Jones,  50  Mo.  438.  182. 

6  Brenham  v.  Davidson,  51  Cal.  352. 


579 


§  363  THE   DOMESTIC   RELATIONS.  [PAIIT    IV 

estate  in  Maine  belonging  to  his  ward,  also  a  non-resident,  the 
person  authorized  in  that  State  to  make  the  sale  was  ordered  to 
transmit  the  proceeds  to  such  non-resident  guardian ;  but  this 
would  not  be  the  rule  in  some  other  States.1  Statutes  have 
been  frequently  enacted  by  which  non-resident  guardians  may 
sell  their  ward's  lands,  on  petition  to  the  court  having  jurisdic- 
tion, with  an  authenticated  copy  of  the  letters  of  guardianship, 
and  compliance  with  the  ordinary  formalities  of  such  sales ; 
executing,  perhaps,  to  the  court  having  control  of  the  funds,  a 
bond  for  their  proper  application.2 

§  363.  American  Chancery  Rules  as  to  Sales  of  Infant's  Land. 
—  It  is  held  in  New  York  that  the  statutes  of  that  State  provide 
for  judicial  sales  only  in  cases  where  the  legal  title  is  in  the 
infant ;  and  that,  independently  of  such  statutes,  the  court  of 
chancery,  having  regard  to  the  infant's  necessities  and  interest, 
may  order  a  sale  of  the  equitable  estate.  On  this  principle  a 
chancery  sale  was  sustained,  as  against  infants,  where  a  trust 
estate  of  infants  in  lands  had  been  transferred  by  a  contract 
made  between  the  guardian  and  purchaser  with  the  approval  of 
the  court.3  Other  sales  of  this  kind  have  been  allowed  where 
the  legal  estate  was  in  the  infant.4  The  course  of  procedure  in 
that  State  is  somewhat  peculiar,  and  English  chancery  prece- 
dents are  strongly  favored.  It  is  held  that  the  part-owner  of 
lands  in  which  an  infant  is  interested  ought  not  to  be  allowed 
to  make  the  sale.5  So,  too,  the  sale  of  a  court,  contrary  to  the 
provisions  of  a  devise,  is  utterly  void.6  And  in  a  late  case  the 
chancery  jurisdiction  over  the  land  of  infants  is  expressed  in 
quite  guarded  language,  and  apparently  to  the  effect  that  the 
court  has  no  inherent  original  jurisdiction  to  direct  such  sales, 
but  that  authority  must  be  derived  from  statute.7    In  some  other 

1  Join -on    ,•.    Avery,    2    Fairf.    09;  also  Matter  of    Ellison,  5   Johns.  Ch. 

contra,  Clay  v.  Brittingham,  84  Md.675.  201  ;  Sutphen  u.  Fowler,  9  Paige,  280. 
■^  McClelland  ''.  .McClelland,  7  Baxt.  T  Here  real  estate  owned  by  tenants 

210.  in  common,  of  whom  an  infant  was  one, 

'•  Woods   '.   Mather,  88   Barb.  478;  was  sold  under  and  in  pursuance  of  a 

Anderson  v.  Mather,  44  N.  V.  249.  judgment  in  a  partition  suit  instituted 

1  In  r<   Hazard,  9  Paige,  865.  by  others  of  the  tenants  in  common, 

''  /,.  miis,  -2  Kdw.  Ch.  1  I'!.  and  it  was  held  that  the  portion    of  the 

'■  Rogi  Dill,  6    Hill,  115.     Sir  proceeds    belonging  to  the    infant   re- 


o 


SO 


CHAP.  VII.]       SALES    OF    WARD'S    REAL   ESTATE.  §  3G3 

States,  chancery,  by  virtue  of  its  general  jurisdiction  over  in- 
fants and  their  estates,  claims  similar  power  to  decree  the  sale 
of  an  infant's  lands,  whether  held  under  a  deed  or  will,1  or  in 
trust,  and  thus  to  dispose  even  of  contingent  estates  should 
occasion  arise;2  or  to  partition,  or  to  give  orders  to  reinvest 
proceeds.  Here  the  aid  of  local  statute  is  sometimes  invoked 
for  the  liberal  exercise  of  such  functions  ;  but  aside  from  such 
aid  the  claim  is  made  positively  in  several  States  that  chancery 
has  inherent  jurisdiction  to  order  the  sale  of  lands  belonging  to 
infants  for  their  proper  support  and  education,  or  more  broadly 
still  for  their  benefit.3 

There  are,  indeed,  numerous  American  decisions,  in  which 
the  rights  of  infants  in  lauds  are  protected  in  equity,  so  far  as 
to  give  the  infants  opportunity  to  confirm  or  set  aside  a  sale  of 
real  estate  and  prevent  them  from  being  bound  by  a  transaction 
to  which  they  could  not  be  parties  in  their  own  right.  Instances 
are  found  in  administrators'  settlements  to  which  the  infant  heir 
was  not  a  privy,  sales  under  decree  to  persons  who  had  never 
paid  the  purchase-money,  and  fraudulent  transactions.4  It  is 
held  that  chancery  cannot  interfere  with  the  lands  of  infants 
unborn.5  But  sales  made  in  fraud  of  an  infant  are  sometimes 
adopted  and  confirmed  by  a  court,  with  the  purchaser's  assent, 
as  being  beneficial  to  the  infant.6  After  destruction  of  the 
records  and  lapse  of  time,  the  sale  may  be  presumed  to  have 
conformed  to  essentials.7     And  as  we  shall  see  hereafter,  length 

mained  impressed  with  the  character  of  rule  upholds  such  jurisdiction  quite  ex- 
real  estate,  and  as  such  did  not  pass  un-  tensively.  Hale  v.  Hale,  14ti  111.  227. 
tier  the  infant's  will.  Horton  v.  McCoy,  Statutes  of  a  State  may  affect  this 
47  N.  Y.  21.  And  see  Cole  v.  Gourlay,  whole  jurisdiction.  87  Va.  076;  53 
79  N.   Y.   527.      Guardian   summarily  Ark.  37. 

ordered  to   refund  the  excess  of  pur-  *  Williams  v.  Duncan.  44  Miss.  376 ; 

chase-money  in   case  of  an  error  as  to  Jones  v.  Billstein,  28   Wis.  221  ;  Wil- 

the  extent  of  the  infant's  lands.  Matter  liams  v.  Wiggaud,  53  111.  233  ;  Terry  /■. 

of  Price,  67  N.  Y.  231.  Tuttle,  24  Mich.  206  ;  Phillips  v.   Phil- 

1  Goodman  v.  Winter,  64  Ala.  410;  lips,  50  Mo.  604;  Walke  v.  Moody,  65 
Redd  v.  Jones,  30  Gratt.  123.  N.  C.  599. 

2  Palmer  v.  Garland,  81  Va.  444  5  Downin  v.  Sprecher,  35  Md.  474. 
(aided  by  statute) ;  Thaw  v.  Ritchie,  136  6  Ex  parte  Kirkman,  3  Head,  517. 
U.  S.  519.                                                              7  Spring  v.  Kane,  86  111.  580.  Where 

3  Shumard  v.  Phillips,  53  Ark.  37  ;  a  court  of  equity  acts  on  general 
Thaw  r.  Ritchie,  136  U.  S.  519;  Hamer  grounds,  it  must  inquire  whether  the  in- 
v.   Cook,  118   Mo.  476.      The   Illinois  fant  will  be  benefited;  if  not,  decree 

581 


§  365  THE   DOMESTIC    RELATIONS.  [PART  IV. 

of  time  and  laches  on  the  infant's  part  after  reaching  majority, 
or  his  election  not  to  avoid,  may  often  render  the  transaction 
unimpeachable.1 

§  364.  Guardian's  own  Sale  not  binding ;  Public  Sale  usually 
required.  —  In  general,  a  guardian's  sale  of  real  estate  belonging 
to  his  minor  ward,  without  an  order  from  the  court  either  by 
virtue  of  statute  or  chancery  jurisdiction,  is  not  binding  upon 
the  minor ;  and  such  ward's  interest,  legal  or  equitable,  can  only 
be  divested  by  a  public  sale  under  proper  judicial  sanction;2 
though  discretion  is  sometimes  given  the  court  as  to  ordering 
and  sanctioning  a  private  sale.3  But  under  a  deed  of  gift  to 
minors,  empowering  the  guardian  to  sell,  his  discretion  is  com- 
mensurate with  the  terms  of  the  trust.4 


CHAPTER   VIII. 

THE   GUARDIAN'S   BOND,   INVENTORY,   AND    ACCOUNTS. 

§  365.  Guardian's  Recognizance  ;  Receiver,  &c.  |  English  Chan- 
cery Rule.  —  It  is  the  practice  of  the  English  court  of  chancery 
to  require  chancery  guardians  appointed  on  petition  without 
suit  to  enter  into  recognizance  to  account.  When  reference  is 
made  to  a  master  on  the  original  petition  for  guardianship,  he 
is  directed  to  make  a  report  approving  of  the  security  offered  as 
well  as  of  the  person  desiring  the  appointment.  On  this  report 
the  court  proceeds  to  act.     A  recognizance  with  sureties  is  usu- 

-I Id  be  refused.    I48H1.321.    General  400;    Krhafer    v.   Lnke,  51    Wis.  669. 

jurisdiction  denied  in  selling  land  where  Land   hold   not  taxable  to   purchaser 

an  adult  had  a  part  interest.    72  Md.  264.  until    conveyance     is    executed,    con- 

Jurisdiction  apart  from  statute  denied,  firmed,  &c,  even   though  by  its   terms 

87  Va.  676.  dating     back.      Ordway    v.    Smith,  53 

1    Sic    infra,    c.    9;    Infancy,   cr.   5  Iowa,  589. 
and  6;    Havens  /•.  Patterson,  43  N.  Y.         2  Supra,  §  356;  Wells  v.  Chaffin,  60 

218;    Parmele    '•.    McGinty,    52    Miss.  Ga.  677  ;  Morrison  v.  Kinstra,  55  Miss. 

475.      Infant's  title   under  statute  sale,  71. 

when  actually  divested,  see  Doe  v.  Jack-        "Maxwell    v.    Campbell,   45   Lid. 

son,  -"'I    A l.i    514;   Shaffner  v.  Briggs,    861. 

86  1ml  55;  MacVey  v.  MacVey,  51  Mo.         4  Thurmond  v.  Faith,  69  Ga.  832. 

582 


CHAP.  VIII.]  GUARDIAN'S   BOND,   ETC.  §  366 

ally  taken ;  but  the  court  uses  its  discretion ;  and  sometimes  the 
personal  recognizance  of  the  guardian  is  deemed  sufficient.  This 
recognizance  is  vacated  when  the  infant  comes  of  age.  No  rec- 
ognizance in  modern  practice  is  required  from  the  guardian  of 
the  person  who  is  appointed  where  the  infant  has  been  made  a 
ward  of  chancery  during  the  pendency  of  a  suit.  Nor  is  it  given 
by  guardians  selected  by  the  court  for  special  purposes  ;  as,  for 
instance,  to  give  formal  consent  to  an  infant's  marriage  under 
Lord  Hardwicke's  act.  In  a  word,  the  chancery  rule  appears 
to  be  that  guardians  of  the  estate  give  security  for  the  perform- 
ance of  their  trust,  but  guardians  of  the  person  none.  Special 
circumstances  may,  however,  arise  for  requiring  recognizance 
from  the  latter.1 

Since  the  active  management  of  the  infant's  estate  is  fre- 
quently intrusted  to  a  receiver,  selected  as  an  officer  of  the 
court,  the  latter  is  also  bound  to  account  annually  and  pay  his 
balances  into  court.  For  performance  of  these  duties  he  gives 
proper  security  ;  and  he  is  allowed  a  salary  for  his  services.2 

§  366.  American  Rule  ;  Bonds  of  Probate  and  other  Guardians. 
—  In  this  country,  as  we  have  seen,  most  guardians  of  the  estate 
are  what  may  be  termed  probate  guardians,  deriving  their 
authority  under  the  appointment  of  courts  which  most  resemble 
the  old  ecclesiastical  courts  of  England.  The  practice  which 
has  grown  up  in  most  of  the  States,  as  well  as  our  statute  law, 
places  guardians,  therefore,  in  many  respects,  on  the  same  foot- 
ing as  executors  and  administrators.  Like  such  officers  they 
give  bonds,  file  inventories,  and  render  regular  accounts  to  the 
court ;  and  the  same  principles  which  apply  to  the  one  class,  in 
these  respects,  apply  also  to  the  other.  But  as  these  three  re- 
quirements have  main  reference  to  the  ward's  property,  little 
or  no  practical  necessity  exists  for  pursuing  a  guardian  who 
neglected  to  qualify  or  file  inventory  or  account  where  there 
were  no  assets  of  the  infant.     - 

A  probate  guardian,  before  receiving  from  the  court  his  let- 
ters of  appointment,  is  obliged  to  give  bond,  with  good  security, 

1  Macphers.  Inf.  108,  348,  553;  2  eery  practice  in  New  York,  see  In  re 
Kent.  Com.  227.  Morrell,  4  Paige,  44 ;  Minor  v.  Betts,  7 

2  Macphers.  Inf.  266.     As  to  chan-    Paige,  596. 

583 


36G 


THE    DOMESTIC   RELATIONS. 


[PAKT    IV. 


for  the  faithful  performance'of  his  trust.1  As  such  guardian  is 
intrusted  with  both  the  person  and  estate  of  his  ward,  the  lan- 
guage of  his  bond  should  be  framed  accordingly.  In  some 
States  the  statute  prescribes  the  terms  substantially  as  follows : 
To  make  a  true  inventory  of  the  ward's  estate  which  shall  come 
to  his  possession  or  knowledge ;  to  manage  the  property  accord- 
ing- to  law  and  the  best  interests  of  the  ward,  and  to  discharge 
his  trust  faithfully  in  relation  thereto ;  to  render  regular  ac- 
counts to  the  court;  and,  finally,  to  make  due  settlement  with 
the  ward  or  other  person  lawfully  entitled  at  the  expiration 
of  his  trust.  The  bond,  in  case  of  an  infant,  stipulates  for  a 
faithful  discharge  of  duties  as  to  custody,  education,  and  main- 
tenance ;  but  where  the  ward  is  an  adult  insane  person  or 
spendthrift,  for  custody  and  maintenance  only.2 

The  penal  amount  of  the  guardian's  bond,  as  in  other  cases,  is 
usually  fixed  at  double  the  amount  of  the  estate  to  be  accounted 
for.  The  sureties  are  to  be  approved  by  the  court.  When  such 
sureties  are  insolvent  or  the  penal  sum  named  in  the  bond  is 
insufficient,  or  from  any  other  cause  the  bond  becomes  unsatis- 
factory, a  new  bond  may  be  ordered  with  such  security  as  the 
court  deems  proper.  This  bond  is  made  payable  to  the  judge 
or  his  successors  in  office,  and  is  kept  on  file,  to  be  sued  in 
behalf  of  the  ward  or  by  any  other  person  who  may  be  injured 
by  the  misconduct  of  the  guardian  while  in  office.3 


1  Xo  one  shonld  receive  letters  or  be 
considered  actual  guardian  until  he 
files  a  statutory  bond.  57  Fed.  966.  But 
where  l'-ttcrs  issue  reciting  that  bond 
has  been  given,  it  will  be  presumed 
thai  the  bond  was  filed  though  it  can- 
notbe  found.  McGalei>.McGale(1894), 
I;.  I.  Bond  not  an  essential  to  a  valid 
appointment  in  104  X.C.  75. 

-  Smith's  Prob.  Tract.  (Mass.)  88, 
39  As  to  dispensing  with  sureties 
where  ;i  fidelity  company  guarantees 
the  bond,  see  I  Dem.  (N.  V.)  75. 

■  B(  e  Mass.  Gen.  Sta  c.  101  ;  lb.  c. 
109  Bi  nnett  v.  Byrne,  2  Barb.  Ch. 
216;  Branson  w.  Brooks,  68  Ala.  248. 
A  succeeding  guardian  may  of  course 
sue  such  bond.     Vbria  v.  State,  i"  End. 

584 


345.  The  probate  guardian  ought  to 
file  an  approved  bond  before  being  con- 
sidered duly  qualified.  The  court  can- 
not, after  appointing  him  guardian  of 
one  child,  appoint  him  guardian  of 
another  subsequently,  and  then  order 
the  former  bond  to  stand  for  both. 
Vanderburg  v.  Williamson,  52  Miss. 
233.  Some  statutes  hold  the  judge  to 
careful  inquiry  into  the  sufficiency  of 
sureties  before  accepting  them.  Colter 
V.  Mclntire,  11  Hush,  565.  Delivery  of 
a  guardian's  bond  to  the  proper  office 
cannot  readily  be  shown,  after  long 
lapse  of  time,  to  be  merely  in  escrow. 
Ordinary  v.  Thatcher,  n  X.  J.  L.  403. 
A  bond  filed  and  executed  by  two 
sureties,  though  calling  in  its  premises 


CHAP.  VIII.]  GUARDIAN'S    BOND,    ETC. 


§  3G6 


A  probate  bond  may  be  good,  though  in  artificially  drawn,  if 
substantially  in  compliance  with  the  statute.1  And  if  it  con- 
tains more  than  the  law  requires,  it  is  nevertheless  good  for 
such  portion  as  is  lawful.2  But  perhaps  not,  if  it  contains  less. 
A  bond  is  not  to  be  avoided  for  slight  defects  committed  through 
carelessness  or  error.  In  some  instances  defective;  bonds  have 
been  cured  in  equity,  so  as  to  hold  both  principal  and  sureties, 
and  have  been  made  enforceable  even  though  void  at  law.3 
Material  erasures  on  the  face  01  the  bond  may  be  explained,  and 
the  presumption  is  fair  that  they  were  made  before  delivery.4 
A  bond  is  not  vitiated  which  contains  a  proper  recital  of  the 
ward's  name,  although  there  be  a  discrepancy  in  names  between 
the  bond  and  letters  of  guardianship;  and  yet  sureties  have  been 
relieved  from  liability  on  the  ground  that  the  ward  was  not 
named  in  the  bond  at  all.5  The  true  principle  which  distin- 
guishes such  cases  seems  to  be  that  the  identity  of  the  parties 
should  sufficiently  appear. 

for  three,  may  bind  the  two.     Ordinary  visions  not  required    in    the    statutory 

v.  Thatcher,  41   N.  J.  L.  403.     In  gen-  form,    which   are   in    accordance    with 

eral,  sureties  as  well  as  the  guardian,  law.     McEadden  v.  Hewett,  78  Me.  24. 

are  estopped  by  the  delivered  bond  it-  But    the    legality   of    an   appointment 

self  from  denying  its  legal  effect  on  the  may  be  denied  by  virtue  of  recitals  in 

ground  of  fraud  by  the   guardian,    or  a    bond  which  are    senseless    and    un- 

arrangements  with  him  as  to  other  sig-  certain.     Hayden    v.   Smith,   49   Conn, 

natures,  &c ,  to  which    the  court,  the  8.3.     The  surety  is  estopped  when  sued 

ward,  and  parties  to  be  protected  by  to  deny  the   appointment  of  the  guar- 

the  bond  were  not  privy.      Vincent  v.  dian  as  recited  in  the  bond.     82  Ind. 


Starks,  45  Wis.  458  ;  Sasscer  v.  Walker, 
5  Gill  &  J.  102  ;  State  v.  Hewitt,  72  Mo. 
603 ;  Brown  v  Probate  Judge,  42  Mich. 
501.  Even  if  the  guardian's  appoint- 
ment was  void  for  want  of  jurisdiction, 
the  sureties  are  held  liable  with  him 
for  his  quasi  guardianship  under  which 
he  obtained  the  property.  Corbitt  v. 
Carroll,  50  Ala.  315.  If  the  appoint- 
ment was  simply  voidable  the  surety 
is  estopped.  156  Penn.  St.  301.  A 
guardian's  bond    held    good,  although 


126  ;  McGale  v.  McGale  (1894),  R.  I. 

1  Probate  Court  v.  Strong,  27  Vt. 
202  ;  Alston  v.  Alston,  34  Ala.  15;  Or- 
dinary v.  Heishon,  42  N.  J.  L.  15. 

2  Pratt  v.  Wright,  13  Gratt.  175. 

3  Wiser  v.  Blachly,  1  Johns.  Ch.  607 ; 
Sikes  v.  Trnitt  4  Jones  Eq.  361  ;  Bum- 
pus  v.  Dotson,  7  Humph.  310. 

4  Xander  v.  Commonwealth,  102 
Penn.  St.  434.  This  presumption  may 
be  rebutted. 

5  Sinister   v.  Perkins,  1    Jones,  325 ; 


there  was  a  blank  where  the  penalty  is  Greenly  v.  Daniels,  6  Bush,  41  ;  State 
ordinarily  written,  and  no  penalty  was  v.  Martin,  69  N.  C.  175,  Sh rover  v. 
stated.  102  Ind.  214.  Nor  was  it  in-  Richmond,  16  Ohio  St.  455 ;  Richard- 
valid  for  want  of  approval.  lb.  son  v.  Boynton,  12  Allen,  138.  Bond 
A  guardian's  bond  is  not  converted  not  invalid  where  a  blank  was  left  for 
from  a  statutory  to  a  common-law  the  initials  of  the  wards'  names.  41 
bond    merely  because  it  contains   pro-  Ark.  254. 

585 


§  367  THE   DOMESTIC    RELATIONS.  [PART  IV. 

"Where  there  are  several  wards,  one  probate  bond  is  sufficient 
for  all.1  But  separate  bonds  for  each  ward  would  not  be  im- 
proper, and,  in  some  instances,  might  be  even  preferable.  The 
names  of  all  the  wards  should  be  embraced  in  the  bond,  where 
only  one  is  furnished. 

Natural  guardians  are  not  required  to  give  bond.  Nor  were 
guardians  in  socage.  Nor,  in  England,  are  testamentary  guar- 
dians to  furnish  security  to  the  court.  The  reason  is  that  these 
guardians  were  not  judicially  appointed  nor  answerable  in  gen- 
eral to  the  court.  The  same  law  prevails  in  many  parts  of  this 
country.2  But  in  some  States  testamentary  guardians  are  treated 
like  executors,  in  respect  to  their  appointment ;  that  is  to  say, 
the  will  which  names  them  must  be  admitted  to  probate  and 
letters  issued ;  and  the  testator's  appointment  is  made  subject 
to  judicial  approval.  In  such  cases  the  testamentary  guardian 
like  the  executor,  is  required  to  give  security ;  but  he  may  be 
exempted  from  giving  sureties,  if  the  testator  requested  such 
exemption  and  the  court  deems  it  safe  to  grant  the  request.3 

§  367.  The  Same  Subject ;  Liability  of  Guardian  and  Sureties. 
—  The  bond  of  a  probate  guardian  renders  him  and  his  sureties 
liable  for  all  estate  of  the  ward  which  shall  come  to  his  pos- 
session or  knowledge.  This  includes  chattels  due  from  the 
guardian  to  the  ward  at  the  time  of  his  appointment  or  of  the 
execution  of  the  bond,  even  though  the  fund  be  the  proceeds  of 
land  already  sold  and  paid  for,  and  the  rent  of  real  estate  occu- 
pied by  the  guardian  before  that  time.  It  embraces  chattels 
and  rents  and  income  from  every  species  of  property  that  the 
guardian  actually  receives  in  his  official  capacity,  or  that  he 
might  have  received  if  he  had  faithfully  performed  his  duties.4 
Property  received  from  persons  resident  in  another  State  is  cov- 
ered by  the  bond  as  much  as  property  originally  within  the 

i  Cranston  v.  Spragne,  3  R.  I.  205 ;  213.    Bond  must  be  given.     57   Fed. 

Ordinarj  v.  Beishon,  42  X.  J.  L.  15.  966. 

•;  Bee  supra,  cs.  1,2;  Thomas  '■.  Wil-         4  Mattoon  v.  Cowing,  13  Gray,  387  ; 

liams,  9  Ha.  289.  Neil] ''.  Neill,81  Miss,  .-it; ;  Bond  y.Lock- 

*  See    M.i>s.  (leu.    StS.    C.    109.      A  wood,  33  111.  212;  Williams  v.  Morton, 

testamentary  guardian  will  1 cdered  88   Me.  47;   McClendon  v.   Barlan,  2 

to  furnish  security  whenever  the  court's  lloisk.  337;    Hunt   v.   State,   53    Ind 

interposition  appears  proper.    ISPhila.  321. 

586 


CHAP.  VIII. J  GUARDIAN'S   BOND,    ETC.  §  367 

jurisdiction.1  But  while  the  property  is  beyond  his  reach,  and 
cannot  be  obtained  without  a  foreign  appointment,  the  liability 
of  his  bondsmen  would  not  seem  to  extend  beyond  a  general 
dereliction  of  duty  on  his  part  in  neglecting  the  proper  means 
of  obtaining  it.  The  bond  of  guardians  of  foreign  wards,  ap- 
pointed for  recovering  estate  situated  in  their  own  State,  binds 
them  to  account  only  for  such  property,  nor  can  they  be  held 
liable  for  the  custody  of  the  wards  while  the  latter  remain  non- 
residents. A  legacy  due  from  the  executor  of  the  ward's  father, 
and  other  estate  lawfully  payable  to  the  guardian  by  the  execu- 
tor, must  all  be  accounted  for,  and  for  this  the  guardian's  sure- 
ties are  doubtless  liable.  The  bond  covers  property  of  the  ward 
obtained  by  the  guardian  and  disposed  of  before  his  appointment 
and  charged  in  account.2  But  for  property  unlawfully  received 
by  the  guardian,  and  not  belonging  to  his  ward,  although  he 
may  be  compelled  to  account  for  it  on  his  personal  responsi- 
bility, his  sureties  are  not  liable,  since  it  does  not  come  to  his 
hands  as  guardian.3  Where  the  guardian  loans  his  ward's  money 
improvidently,  he  and  his  sureties  become  and  continue  liable 
for  it.4 

The  liability  of  sureties  lasts  to  the  full  extent  of  the  penal 
sum  named  in  the  bond,  while  the  responsibilities  of  the  guar- 
dianship continue,  and  it  does  not  terminate  by  the  resignation 

1  McDonald  ».  Meadows,  1  Met.  transfer  of  the  estate  by  the  guardian 
(Ky.)  507;  Brooks  r.  Tobin,  135  Mass.  to  one  erroneously  supposed  to  be  a 
69;  State  v.  Williams,  77  Mo.  463.  qualified  successor.     90  N.  C.  72.     Or 

2  Sargent  v.  Wallis,  67  Tex.  483.  where  the  guardian  removes  from  the 

3  Livermore  v.  Bemis,  2  Allen,  394;  State  without  accounting.  81  I  nil.  455. 
Allen  v.  Crosland,  2  Kich.  Eq.  68;  Bal-  Or  where  he  converts  the  ward's  money 
lard  v.  Brummitt,  4  Strobh.  Eq.  171.  before  giving  a  bond  and  afterwards 
As  to  liability  where  court  ordered  a  replaces  it,  but  fails  to  account  for  the 
deposit  of  money,  see  Griffith  v.  Parks,  money  so  replaced.     80  Tnd.  155. 

32  Md.  1.     Guardian's  bondsmen  held  The  guardian's  sureties  are  not  liable 

liable  for  the  full  amount  of  insurance  for  money  paid  over  to  a  guardian  by 

policy  on  the  life  of  the  father  taken  executors  contrary  to  directions  of  the 

for   two   children,    one   of  whom   died  will.     Hindman  v.  State,  61    Md.  471  ; 

soon  after  the  father.     Carr  v.  Askew,  Perkins  v.  Tooley,  74   Midi.  220.     Nor 

94  N.  C.  194.     For  a  claim  assigned  by  for  money  paid  over  by  mistake,  even 

the  widow  against  the  administrator  of  though    die   guardian   in    his  accounts 

the  estate  of    the    child's    father.     22  charged  himself.     121  Ind.  187.     And 

S.  C.  147.     For  the  guardian's  failure  see  99  Mo.  609. 

to  make  a  reinvestment.     81    Ky.  158.  *  Richardson  v.  Boynton,  12  Allen 

For  a  loss   occurring   by  reason  of  a  138. 

587 


§  367  THE   DOMESTIC   RELATIONS.  [PART    IV. 

or  death  of  the  guardian.  For  the  ward's  estate  in  the  guar- 
dian's  hands  or  subject  to  his  control  at  the  time  of  his  resig- 
nation or  death,  they  continue  liable.1  Their  liability,  though 
usually  recited  in  the  bond,  extends  in  general  to  whatever  the 
guardian  received  after  the  bond  was  executed  and  by  culpable 
negligence  or  misconduct  wasted,  misapplied,  or  did  not  duly 
account  for.2  Not  even  the  statutory  limitation  to  suits  against 
executors  and  administrators  operates  to  relieve  such  sureties 
for  the  default  of  their  deceased  principal.3  The  estate  of  a 
deceased  surety  is  liable  for  a  default  of  the  guardian  which 
occurred  after  such  surety's  death,  and  before  final  settlement  of 
the  trust,4  Under  the  prevalent  rule  of  American  statutes,  no 
action  can  be  maintained  on  the  bond  of  a  probate  guardian 
until  after  a  citation  to  account  and  a  decree  which  establishes 
a  default  on  his  part ;  and  this  holds,  even  though  the  guardian 
should,  meanwhile,  die.5  Sureties  are  liable  so  long  as  the  offi- 
cial bond  can  be  sued  at  all.  But  a  surety  may  be  discharged 
at  any  time  upon  his  petition  and  after  due  notice  to  all  parties 
interested  ;  and  thereupon  the  court  will  order  the  guardian  to 
furnish  new  security,  and,  upon  his  failure  to  do  so,  may  remove 
him.  But  such  surety  remains  liable  until  the  new  bond  is 
approved  ; 6  and  for  any  previous  embezzlement  or  other  mis- 
conduct or  culpable  mismanagement  committed  by  the  guardian 
he  must  still  respond.7  The  personal  representative  of  a  de- 
ceased surety,  it  would  appear,  may  compel  the  guardian  to 
furnish  new  security  in  like  manner.8     The  approval  of  a  new 

1  Moore  r.  Wallis,  1-3  Ala.  458;  State  1  Eichelber£>er  v.  Gross,  42  Ohio  St. 

v.  Thorn,  28  IimI.  :300  ;  Ashby  v.  John-  549  ;  Yost   v.  State,  80  Ind.  350.     And 

Bton,  23  Ark.  163.  see  Bell  v.  Rudolph,  70  Miss.  234, that 

-  Ellison  '-.  Green,  88  Ga.  722.  no  artifice  of  the  guardian  over  such 

:;  Chapin    v.    Livermore,    13    Gray,  embezzlement  will  relieve  such  surety. 

561  ;  Ordinary  v.  Smith,  55  Ga.  15.  8  Moore  v.  Wallis,  18  Ala.  458.     The 

1   Voria  v.  State,  47  Ind.  345;  Cot-  heirs  of  a  deceased  suret\  are  not  liable 

ton  y.  State,  64   [nd.  578.     See  Brooks  jointly  with  the  principal  on  the  bond. 

v.  Rayner,  127  Mass.  268.  Strickland    v.    Holmes,    77    Me.    197. 

■  Perkins    r.   Srin 1,    114    N.    Y.  Where  a  guardian,  after  the  death  of 

359,     For  in  such  case  his  representa-  one  surety,  gives  another   bond   with 

hould  be  summoned  to  account.  other  sureties  conditioned  like  the  first, 

'•  Jamison  v.  Cosby,  11  Humph.  273;  though  with  larger  penalty,  the  sure* 

Ma  -  Gen.  Sts.  c.  101  ,  Bellune  v.  Wei-  ties  on  both  bonds  are  co-sureties     Ste» 

•  Rich.  80.  vena  v.  Tucker,  87  Ind.  109. 

r,s8 


chai\  vrn.]  guardian's  bond,  etc.  §  3G7 

bond  and  the  discharge  of  a  former  surety,  terminate  ipso  facto 
the  liability  of  such  surety  so  far  as  new  acts  of  the  guardian 
are  concerned,  notwithstanding  the  security  substituted  may 
prove  insufficient,  or  the  instrument  fatally  defective.1  Release 
of  a  surety  is  not  to  be  readily  presumed.2  One  surety  cannot 
be  discharged  from  his  liability  without  the  other,  unless  the 
'latter  by  words  or  acts  shows  his  consent  to  remain  solely 
responsible.3 

The  sureties  on  a  guardian's  bond,  though  liable,  it  may  be, 
for  money  received  by  the  guardian  before  the  bund  was  made, 
are  not  liable  for  what  he  receives  after  having  resigned  or 
been  removed  from  office.4  And  where  a  ward  dies  and  the 
guardian  administers  upon  his  estate,  the  liability  for  the  assets 
formerly  held  by  the  latter  as  guardian  becomes  transferred  to 
him  as  administrator,  and  the  sureties  on  his  administration 
bond  are  made  liable  in  place  of  those  who  were  his  bondsmen 
in  the  guardianship.5  But  redress  for  a  guardian's  conversion 
should  be  sought  on  the  bond  or  bonds  in  force  at  the  time; 
and  the  question  is  not  when  does  the  guardian  charge  him- 
self with  assets,  but  when  do  they  come  to  his  possession  or 
knowledge  as  guardian.6 

Where  the  guardian  has  filed  an  additional  bond,  as  in  case 
of  a  large  accession  to  the  original  estate,  both  bonds  remain 
valid,  the  new  bond  is  taken  as  a  cumulative  security  and  the 

1  Hamner  v.  Ma=son,  24  Ala.  480.  v.  Armstrong,  88  Tnd.  65,  for  the  rule 
See  Kendrick  v.  Wilkinson,  18  Ind.  where  a  guardian  in  default  gave  a  new 
206.  A  surety  may  sign  an  old  guar-  bond  and  then  committed  other  defalca- 
dian's  bond  as  well  as  a  new  one,  in  the  tions  and  died,  his  estate  paying  a  per- 
stead  of  a  retiring  surety.  15  Lea,  618 ;  centage  on  the  entire  defalcation.  For 
103  111.  142.  the  California  rule  see  Spencer  v.  Hough- 

2  Wauu  v.  People,  57  111.  202.  ton,  68  Cal.  82. 

8  See  Newcomer's  Appeal,  43  Penn.  4  Merrells  v.  Thelps,  34  Coun.  109. 
St.  43;  Sebastian  v.  Bryan,  21  Ark.  But  as  to  payments  made  to  some  per- 
447  ;  Frederick  v.  Moore,  13  B.  Monr.  son  by  one  not  aware  that  his  authority 
470 ;  Boyd  v.  Gault,  3  Bush,  644.  has  been  revoked,  see  Sage  v.  Ham- 
Where  a  guardian  has  once  been  dis-  monds,  27  Graft.  651.  See  Downing  v. 
charged  with  money  in  his  hands  not  Peabody,  56  Ga  40. 
paid  over,  and  is  subsequently  reap-  &  Baker  v.  Wood,  42  Ala.  664. 
pointed,  and  accounts  only  for  money  6  Lowry  v.  State,  64  Ind.  421  ;  John- 
received  since  reappointment,  the  sure-  son  v.  McCullough,  59  Ga.  212.  And 
ties  on  his  first  bond  are  liable.  Nau-  see  86  N.  C.  190,  where  one  is  adminis- 
gle  v.  State,  101  Ind.  284.     See  Bond  trator  and  guardian. 

589 


§  367 


THE   DOMESTIC    RELATIONS. 


[PART   IV. 


sureties  (as  such  statutes  are  generally  construed),  are  all  deemed 
co-sureties,  and  liable  as  such.1  And  a  bond  voluntarily  offered 
by  the  guardian  and  approved  in  the  ordinary  form  is  as  binding 
as  though  it  had  been  ordered  by  the  court.2  Where,  however, 
the  sureties  of  an  old  bond  are  discharged  and  a  new  bond  is 
substituted,  the  usual  rule  is  that  the  old  sureties  and  the  new 
are  liable  together  as  co-sureties  for  the  defaults  of  the  guardian, 
previous  to  riling  the  new  bond,  and  that  the  new  sureties  alone 
bear  the  responsibility  of  his  subsequent  misconduct,3  But  the 
liability  of  a  surety  on  a  new  bond  given  in  place  of  the  original 
one  is  in  some  States  treated  as  prospective  only,  on  the  equi- 
table principle  that,  where  the  statute  bond  does  not  plainly 
express  a  retrospective  operation,  such  should  not  be  its  con- 
struction.4 Contribution  is  in  proportion  to  the  penal  sum 
named  in  the  respective  bonds.  But  in  special  instances  and 
under  the  open  sanction  of  the  court  and  of  an  infant's  coun- 
sel a  new  surety  has  been  accepted  upon  qualified  terms  of 


1  Loring  v.  Bacon,  3  Cush.  465  ; 
Commonwealth  v.  Cox,  36  Penn.  St. 
442  ;  Allen  v.  State,  61  Ind.  268  ;  Huson 
v.  Green,  88  Ga.  722.  In  absence  of 
positive  evidence  of  the  time  of  any 
misconduct,  the  sureties  are  all  liable 
in  this  case  for  the  entire  guardianship. 
Douglass  v.  Kessler,  57  Iowa,  63.  And 
see  87  Ind.  109. 

2  Potter  v.  State,  23  Ind.  550. 

3  Loring  v.  Bacon,  3  Cush.  465  ;  Bell 
v.  Jasper,  2  Ired.  Eq.  597 ;  Hutchcraft 
v.  Shrout,  1  Monr.  206  ;  Jones  v.  Elan- 
ton,  6  Ired.  Eq.  115  ;  Ammons  v.  Peo- 
ple, 11  111.  6;  Savers  v.  Cassell,  23 
Gratt.  525  ;  McGloshlin  v.  Wyatt,  1  Lea, 
717;  State  v.  Page,  63  Ind.  209.  The 
language  of  a  local  code  must  be  re- 
BOrted  to  for  the  rule  in  such  cases  as 
to  the  discharge  of  former  bondsmen 
from  liability.  See  Sayera  v.  Cassell, 
28  Gratt.  525.  A  periodical  statutory 
bond  ia  required  in  some  States,  and 
even  such  bonds  are  held  to  be  cumula- 
tive, under  the  statute,  as  to  the  wards, 
though  contribution  is  in  inverse  order 
of  execution.  Tennessee  Hospital  o. 
Fnqua,   1    Lea,  60S.     A  surety  is  not 

590 


liable  for  money  paid  the  guardian  on 
account  of  a  ward  who  at  the  time  of 
payment  was  of  age.  Slieton  v.  Smith, 
59  Tenn.  82.  A  surety's  contingent 
liability,  being  provable  .against  him  in 
bankruptcy  proceedings,  may  thus  have 
have  been  avoided.  Davis  v.  McCurdy, 
50  Wis.  569.  But  not  a  guardian's. 
Re  Maybin,  15  Bankr.  Reg.  468.  Sure- 
ties on  a  bond  are  not  usually  liable  for 
past  defaults.  State  v.  Jones,  89  Mo. 
470;  Mc Williams  v.  Xorneet,  60  Miss. 
987.  But  a  substituted  surety  is  liable 
for  money  received  before  by  the  guar- 
dian. Tuttle  v.  Northrop,  4-1  Ohio  St. 
178.  Or  for  money  already  lent  to  a 
firm  which  afterwards  turns  out  insol- 
vent. McWilliams  v.  Norfleet,63  .Miss. 
183.  The  sureties  on  a  guardian's  ad- 
ditional bond  may  be  liable  for  his  fail- 
ure to  account  for  money  on  hand  when 
it  was  given ;  the  presumption  being 
that  the  misappropriation  was  after- 
wards. Clark  v.  Wilkinson.  59  Wis. 
543.  See  further,  67  Ala.  406 ;  84  Ind. 
433. 

4  Lowry  v.  State,  64  Ind.  421 ;  State 
v.  Shackleford,  56  Miss.  648. 


CHAP.  VIII.]  GUARDIAN'S   BOND,   ETC.  §  369 

liability  sufficiently  beneficial  to  the  ward,  which  he  insisted 
upon.1 

§  3G8.  The  Same  Subject.  —  Many  of  the  decisions  in  regard 
to  administration  bonds  apply  on  principle  to  those  of  guardians, 
Thus  a  bond  which  is  not  signed  by  the  guardian  is  not  binding 
even  upon  his  sureties.2  And  if  altered,  after  being  signed  by 
two  sureties,  with  the  consent  of  the  principal  only,  and  then 
signed  by  two  other  sureties,  ignorant  of  the  alteration,  it  is  not 
binding  upon  any  of  the  sureties;  not  upon  the  first  two,  be- 
cause altered  without  their  consent ;  not  upon  the  other  two, 
because  they  were  not  informed  of  the  release  of  the  two  former.3 
But  fraud  practised  in  obtaining  a  surety's  signature  affords  the 
surety  whose  confidence  was  misplaced  no  defence  when  sued 
on  the  bond,  as  against  those  his  conduct  led  to  rely  upon  it.4 
So  joint  guardians  who  wish  to  limit  their  respective  liabilities 
must  furnish  separate  bonds  ;  since  both  are  responsible  for  all 
the  acts  of  each  other  during  the  continuance  of  the  joint  guar- 
dianship where  they  execute  a  joint  bond.5  And  the  usual 
rule  is  that  no  more  than  the  penal  sum  named  in  the  bond 
can  be  recovered  upon  it,  unless  it  be  by  way  of  interest  or 
costs.6 

§  369.  The  Same  Subject  ;  Special  Bond  in  Sales  of  Real 
Estate.  —  A  special  bond  is  in  many  States  required  where  a 
guardian  is  licensed  to  make  sale  of  his  ward's  real  estate. 
Where  real  estate  has  been  sold  by  a  guardian,  and  the  proceeds 
remain  unaccounted  for  at  the  expiration  of  his  trust,  it  is  a 
question  whether  the  sureties  on  his  general  bond  shall  be  held 
responsible,  or  those  on  the  special  bond  given  for  sale  of  the 
real  estate.  The  best  authority  is  in  favor  of  charging  the  latter 
and  not  the  former  sureties  for  the  guardian's  misapplication  of 


1  See  Spath's  Estate,  144  Perm.  St.  *  Xander    v.    Commonwealth,    102 
383,  where  it  was  clearly  arranged  upon  Penn.  St.  434 ;  §  366,  note. 

the  insolvency  of  the  guardian  and  his  s  Brazier  v.  Clark,  5  Pick.  96  ;  Spar- 
original  surety,  that  the  new  bondsman  hawk  v.  Buell's  Adm'r,  9  Vt.  41 ;  Boyd 
was  not  to  be  held  liable  beyond  the  v.  Boyd,   1  Watts,  365.    But  see  Wil- 
balance  shown  upon  the  account  then  liams  v.  Harrison,  19  Ala.  277. 
filed.  6  Tyson  v.  Sanderson,  45  Ala.  364 ; 

2  Wood  v.  Washburn,  2  Pick.  24.  Schouler,  Pers.  Prop.  465-170 ;  WilsoH 
8  Howe  v.  Peabody,  2  Gray,  556.  Re,  38  N.  J.  Eq.  205. 

591 


§  370 


THE   DOMESTIC   RELATIONS. 


[PART    TY. 


such  moneys,1  unless  the  default  be  such  that  the  misapplication 
canuot  be  identified.  The  rule  ia  Massachusetts,  where  a  guardian, 
who  has  been  licensed  to  sell  real  estate  for  the  purpose  of  invest- 
ment, fails  to  invest,  and  charges  himself  instead,  in  his  accounts, 
with  the  proceeds  and  interest  from  year  to  year,  has  been  to  hold 
him  responsible  for  the  proceeds  of  the  sale  upon  his  special  bond, 
but  for  the  interest  upon  his  general  bond.2  The  omission  to 
give  a  special  bond  for  the  sale  of  real  estate  is,  on  the  foregoing 
principles,  no  breach  of  the  guardian's  general  bond. 

§  370.  The  Guardian's  Inventory.  — One  of  the  probate  guar- 
dian's first  duties  after  his  appointment  is  to  file  an  inventory  of 
the  ward's  effects.  This  is  a  schedule,  prepared  by  discreet  and 
disinterested  persons,  and  verified  by  their  oath,  wherein  the 
amount  of  the  ward's  estate,  both  real  and  personal,  together 
with  the  separate  items,  are  duly  entered  at  a  just  valuation. 
The  inventory  serves  as  the  basis  of  the  guardian's  accounts,  and 
primarily  fixes  his  liability.  Here  again  the  statute  relative  to 
infants  borrows  from  the  long-established  practice  of  the  English 
ecclesiastical  courts,  with  regard  to  the  administration  of  estates. 
But  one  inventory  is  in  general  necessary ;  and  if  subsequent 


1  Williams  >:  Morton,  38  Me.  47  ; 
Brooks  o.  Brooks,  1 1  Cush.  22  ;  Potter 
t\  Stute,  23  Ind.  607  ;  Fay  v.  Taylor,  11 
Met.  529:  Blauser  v.  Diehl,  90  Perm. 
St.  350;  Madison  County  v.  Johnston, 
51  Iowa,  152;  65  Iowa,  106;  Morris  v. 
Cooper,  35  Kan.  156;  Henderson  v. 
Coover,  4  New  429  ;  Withers  p.  Hick- 
man, 6  B.  Monr.  292;  125  Perm.  St. 
542;  83  Me.  195.  See  Andrews's  Heirs 
Case,  3  Humph.  592.  In  some  States 
the  requirement  of  an  additional  or 
special  bond  in  such  case  is  matter  of 
judicial  discretion.  See  Vanderburg  ». 
Williamson,  52  Miss.  233.  In  other 
>r.iu  -  mh'Ii  bond  is  auxiliary  and  post- 
poned to  the  original  bond.  21  Fla. 
L86  As  to  releasing  sureties  and  fcak- 
iicw  bond  before  confirmation  of 
the  Bale,  see  62  Miss.  786.  The  court, 
by  altering  the  terms  of  sale,  &c,  does 
not  impair  the  obligation  of  such  bond. 
Stevenson  v.  Btate, 69  Ind.  257;  71  Ind. 
52.  Bee  also  Colburn  v.  State,  47  Ind. 
o92 


310,  as  to   real-estate  sale  on  applica- 
tion of  another  than  the  guardian. 

-  Mattoon  v.  Cowing.  13  Gray,  387. 
See  Pratt  v.  McJunkin,  4  Rich.  5.  Sure- 
ties on  the  guardian's  general  bond  are 
liable  where  the  ward's  laud  is  sold  in 
partition  proceedings.  Hooks  v.  Evans, 
68  Iowa,  52.  Where  both  general  and 
special  bond  are  given,  and  the  guar- 
dian's default  makes  it  impossible  to 
ascertain  whether  the  money  unac- 
counted for  consisted  of  proceeds  of  the 
land  or  not.  suit  may  be  brought  against 
either  set  of  bondsmen.  80  Ind.  350. 
And  see  132  Ind.  461.  As  to  moneys  de- 
rived under  a  sale  of  land  not  perhaps 
authorized,  the  bondsmen  cannot  set 
up  want  of  authority.  96  N.  Y.  260. 
Where  accounting  would  not  change 
the  facts  of  liability  it  is  not  a  pre- 
rei|uisite  to  suing  such  a  bond.  14^  N.  V. 
545.     See  §  376. 


CHAP.  VIII.]  GUARDIAN'S   INVENTORY.  §  371 

effects  come  to  the  guardian's  hands,  he  will  place  them  in  his 
accounts  to  the  ward's  credit.  It  is  to  be  observed  that  though 
probate  inventories  are  'prima  facie  evidence  of  the  existence  of 
assets  and  their  true  valuation,  they  are  by  no  means  conclusive. 
And  the  guardian  may  show,  in  rendering  his  accounts,  that  he 
was  not  chargeable  with  certain  items  which  therein  appeared,  or 
that  the  just  sale  of  property  realized  less  than  its  appraised 
worth  ;  and  he  will  be  credited  accordingly.  On  the  other  hand, 
property  omitted  from  the  inventory,  which  conies  within  the  guar- 
dian's reach  in  any  manner,  should  be  accounted  for,  as  well  as  all 
gains  realized  over  and  above  the  appraisers'  valuation.  During 
the  long  period  for  which  a  guardian's  authority  frecpuently  lasts, 
the  inventory  may  become  of  little  practical  consequence,  except 
as  furnishing  for  himself  the  starting-point  in  his  system  of 
accounts,  and  determining,  for  the  convenience  of  others  inter- 
ested, the  fact  and  extent  of  his  original  liability.  And  as 
the  ward's  real  estate  is  to  be  preserved  intact  unless  a  sale  is 
ordered,  the  guardian's  account,  like  that  of  an  administrator, 
starts  usually  in  this  country  with  the  amount  of  personal  estate- 
according  to  the  inventory,  taking  into  his  reckoning  only  the 
income  and  expenditures  from  the  real  estate  until  some  sale  of 
land  is  actually  made.  If  two  or  more  persons  under  guardianship 
are  interested  in  different  property,  or  have  unequal  interests  in 
the  same  property,  separate  schedules  should  be  rendered  for  each.1 
§  371.  The  Guardians  Accounts  ;  English  Chancery  Practice. 
—  The  accounts  of  guardians  are  in  England  subject  to  the 
direction  of  the  court  of  chancery.  Guardians  and  receivers 
who  have  entered  into  recognizance  as  officers  of  the  court  are 
compelled  to  present  their  accounts  on  application  made  by  any 
person   interested.     Such    proceedings   are   by   petition,  or   on 

1  Matter  of  Seaman,  2   Paige,  409 ;  not  precluded   by  the  inventory   from 

Hooker  v.  Bancroft,  4  Pick.  50;  Mass.  showing  the  true  ownership  of  alleged 

Gen.  Sts.  cs.  100,  109  ;  State  v.  Stewart,  assets.     Sanders  v.  Forgasson,  3   Baxt. 

36  Miss.  652;    Clark  v.  W  hi  taker,   18  249.  An  Indiana  statute  makes  the  duty 

Conn.   543;    Fuller   v.  Wing,   5    Shep.  of  a  guardian  to  file  an   inventory  im- 

222  ;  Green  v.  Johnson,  3  Gill&  Johns,  perative.     Wood  v.  Black,  84  Ind.  279. 

388  ;  Fogler  v.  Buck,  66  Me.  205.    And  Summary  removal   is  the   penalty  for 

■see,  as  to  inventories  generally.  1  Wins,  disregard  of  a  court's  order  to  file.     124 

Ex'rs,  878-883;  Schouler,  Ex'rs,   Part  Ind.  250. 
111.   c.   2.     A  guardian's   sureties  are 

38  593 


§  372  THE   DOMESTIC   RELATIONS.  [PART   IV. 

motion  filed.  Eeceivers  are  expected  to  pass  their  accounts 
regularly,  and  a  guardian  is  compelled  to  account  by  enforcing 
his  recognizance.  The  common  rules  as  to  executors  and  trus- 
tees apply  to  guardians.  But  unless  there  is  misconduct  shown, 
the  guardian  need  not  show  specifically  how  he  has  used  the  sum 
allowed  as  maintenance.  A  receiver's  accounts  are  sometimes 
examined  on  application  of  strangers.  Mr.  Macpherson  says 
that  there  is  scarcely  a  modern  instance  to  be  found  where  an 
account  has  been  taken  from  a  guardian  without  suit.1  In  like 
manner,  equity  treats  as  guardians  all  persons  who  take  posses- 
sion of  an  infant's  estate,  whether  duly  authorized  to  act  or  not, 
and  obliges  such  persons  to  account,  on  application  made  by  the 
infant  himself,  or  on  his  behalf.2 

§  372.  The  Guardian's  Accounts  ;  American  Practice  ;  Periodi- 
cal and  Final  Accounts,  &c.  —  Courts  of  equity  in  this  country 
are  doubtless  authorized  to  entertain  like  proceedings  against  all 
quasi  guardians.3  But  under  our  statutes  probate  guardians, 
duly  appointed,  are  invariably  made  liable  to  account,  in  the 
first  instance,  to  the  local  court  issuing  letters  of  guardianship, 
which  thus  becomes,  in  fact,  the  general  depository  of  accounts 
relative  to  the  estates  of  deceased  persons  and  wards.  The  im- 
mediate jurisdiction  over  the  settlement  of  guardians'  accounts 
is  usually,  therefore,  in  the  probate  court. 

An  important  distinction  is  observable  in  the  American  prac- 
tice concerning  the  accounts  of  probate  guardians,  between  the 
final  account  and  those  rendered  from  time  to  time,  as  the  local 
practice  may  require  pending  the  minority  of  the  ward.  The 
rule  is  that  these  intermediate  accounts,  although  judicially 
approved  and  passed,  are  by  no  means  conclusive.  They  serve 
to  show  the  guardian's  liability  and  to  keep  the  court  informed 
of  the  general  condition  of  the  trust  funds,  to  determine  when 
the  guardian's  bond  should  be  increased,  and  to  ascertain  as  to 
the  propriety  of  sales  and  investments.  Such  accounts  remain 
prima  facie  evidence  of  the  sum  of  the  guardian's  indebtedness 
to  his  ward,  and  are  prima  facie  correct  accounts  but  nothing 

'  Maephers.  Inf.  108;  lb.  259,348.  8  Chaney  v.  Small  wood,  1  Gill,  367; 

2  //,  259;  Story,  Eq.  Juris.  §  1195;     next  chapter. 
Morgan  v.  Morgan,  l  Atk.  489. 
594 


chap,  vi ir.]       guardian's  accounts,  etc.  §  372 

more.1  Actual  notice  to  the  ward  by  citation  is  not  indispen- 
sable to  intermediate  accounts.2  The  privilege  remains  to  the 
ward,  as  we  shall  notice  in  the  next  chapter,  of  disputing  their 
accuracy  when  he  comes  of  age.  But  on  the  final  account  of 
the  guardian,  which  is  to  be  rendered  at  the  expiration  of  his 
trust,  the  question  comes  before  the  court  as  to  the  general  fair- 
ness of  his  management,  and  items  allowed  in  former  accounts 
may  then  be  stricken  out  as  improper.  The  reason  of  this  is 
that  the  cestui  que  trust  had  no  earlier  opportunity  of  judging  as 
to  the  correctness  of  the  trustee's  accounts,  and  ascertaining  that 
final  balance,  which  is,  after  all,  the  estate  ill  controversy.  So, 
too,  a  guardian  in  his  final  account  should  be  allowed  to  correct 
errors  to  his  prejudice,  satisfactorily  proved  to  exist  in  his  prior 
accounts,  both  as  to  matters  of  form  and  substance.3  He  should 
be  prepared  to  sustain  by  satisfactory  proof  the  items  which 
indicate  his  dealings  with  the  estate.  But  the  final  account, 
once  examined  and  approved  by  the  court,  and  not  reversed 
on  appeal,  the  ward's  period  of  objecting  to  the  same  having  also 
expired  by  limitation,  such  account,  together  with  all  which  pre- 
ceded it,  concludes  all  parties  interested,  inclusive  of  the  guar- 
dian and  his  own  representatives,  as  to  all  matters  involved  in  the 
settlement,  and  cannot  be  reopened  or  annulled  in  any  court ; 
certainly  not  unless  by  direct  proceedings  to  obtain  a  reversal,  or 
setting  aside  for  fraud  or  manifest  error :  perhaps  in  some  States 
not  at  all.4 

1  Douglas's  Appeal,  82  Penn.  St.  Manning  v.  Baker,  8  Md.  44 ;  Allman 
169  ;  Bourne  o.  Maybin,  3  Woods  C.  C.  v.  Owen,  31  Ala.  167;  Reynolds  v. 
724;  Ashley  v.  Martin,  50  Ala.  537;  Walker,  29  Miss.  250;  State  v.  Strange, 
Matlock  v.  Rice,  6  Heisk.  33 ;  Davis  v.  1  Cart.  538;  Stevenson's  Appeal,  32 
Combs,  38  N.  J.  Eq.  473  ;  State  v.  Jones,  Penn.  St.  318;  Cummings  v.  Cura- 
89  Mo.  470;  62  Md.  427.  But  even  mings,  128  Mass.  532 ;  Holland  v.  State, 
thus,  the  burden  is  on  the  party  attack-  48  Ind.  391;  142  111.  357;  Brent  v. 
ing  them  after  their  acceptance  by  the  Grace,  30  Mo.  253  ;  Seaman  v.  Duryea, 
court.     104  N.  C.  566;  87  Ala.  406.  1     Kern,   324;    Yeager's    Appeal,    34 

2  Davis  v.  Combs,  supra.  Penn.  St.  173;  Lynch'  v.  Rotan,  39  111. 
8  Crump  v.  Gerock,  40  Miss.   765;     14;  Smith  v.  Davis,  49  Md.  470.     Sim- 

Burnham    v.  Dalling,   1    C.  E.   Green,  ilar   rules   apply   often,    as    in    settle- 

144;  Willis  v.  Fox,  25  Wis.  646;  Blake  ments  by  executors  and  administrators. 

v.   Pegram,    101    Mass.    592;    81    Ala.  Irregular   allowance   of    a    guardian's 

435.  account  upon    an    alteration,    and    the 

4  Boynton    v.   Dyer,    18    Pick.     1  ;  discharge  thereupon  of   the   guardian, 

Diaper   v.   Anderson,    37    Barb.    168;  all  without  notice  to  the  ward,  cannot 

595 


§  372 


THE   DOMESTIC   RELATIONS. 


[PAiiT   IV. 


With  probate  guardians  it  is  the  usual  practice  to  present 
accounts  with  vouchers  annually,  and  in  some  States  once  in 
three  years  if  not  oftener,  or  as  otherwise  directed  by  the  court, 
the  parties  in  interest  other  than  the  ward  having  been  first 
cited,  unless  their  approval  appears  upon  the  face  of  the  account. 
The  account  should  be  itemized  and  with  regard  to  chronological 
sequence.  The  account  is  considered  by  the  court  and  passed 
after  due  examination,  upon  the  oath  of  the  guardian.  The 
vouchers  are  retained  by  the  guardian,  but  the  account  is  re- 
corded and  filed  in  the  court.1  The  accounts  of  wards  having 
different  and  unequal  interests  in  property  should  be  kept  dis- 
tinct and  rendered  separately.2  But  the  fact  that  a  guardian  of 
two  wards  invested  on  their  joint  account  without  distinguish- 
ing their  several  interests  is  no  reason  why  the  investment  should 
be  disallowed,  if  sufficiently  for  each  ward's  benefit.3  In  some 
States  the  guardian's  final  account  must  embrace  all  items  con- 


he  permitted  to  deprive  the  latter  of  his 
rights.  Buchanan  v.  Grimes,  52  Miss. 
82.  The  administrator  of  a  deceased 
ward  cannot  ignore  a  final  settlement  of 
the  guardian's  accounts,  duly  made  and 
recorded,  and  cause  another  decree  to 
be  entered  in  the  same  court.  Foust  v. 
Chamblee,  51  Ala.  75.  Nor  can  the 
deceased  guardian's  representative.  142 
111.  357.  When  the  guardian's  set- 
tlement is  surcharged  in  equity,  the 
particular  items  objectionable  should 
1  *«-  specified.  Tanner  v.  Skinner,  11 
Bush,  120.     See  85  N.  C.  199. 

Matters  only  collaterally  introduced 
into  the  settlement,  or  which  did  not 
properly  enter  into  the  accounts,  or  over 
which  the  court  had  no  jurisdiction,  are 
nol  concluded  by  the  final  account.  103 
Mo.  402.  Though  even  as  to  possibly 
omitted  or  improper  items  within  the 
fair  scope  "f   settlement,  such   account 

cannot  be  reopened,  lb.  Rut  while 
the  probate  settlement  is  considered 
final  and  conclusive,  yet  where  the 
guardian  fraudulently  and  intentionally 
concealed  the  existence  of  property  to 
which  his  ward  was  entitled,  the  pro- 
bate settlement  will  not  debar  a  court 

596 


of  equity  from  calling  the  guardian  to 
account  for  such  assets.  91  Cal.  565. 
The  final  settlement  must  be  a  bona 
Jide  and  not  a  colorable  one  with  false 
vouchers.     112  Mo.  661. 

As  to  appeals  and  the  costs  of  ap- 
peal, see  Kingsbury  v.  Towers,  131  111. 
182. 

1  As  to  the  effect  of  annual  settle- 
ments where  the  public  records  have 
been  destroyed,  see  Kidd  v.  Guibar,  63 
Mo.  342.  The  contents  may  be  proved 
by  parol.  lb.  The  guardian's  final 
account  should  purport  on  its  face  to 
be  such.  Bennett  v.  Hanifin,  87  111. 
81.  While  in  force  it  is  an  adjudica- 
tion of  the  matters  lawfully  embraced 
therein.  Rriscoe  v.  Johnson,  73  Iud. 
573. 

2  Armstrong  v.  Walkup,  9  Gratt. 
372;  State  v.  Foy,  65  N.  C.  265;  32 
W.  Va.  215;  §  370.  A  consolidated 
account  for  several  wards  having  un- 
equal interests  should  be  rejected  by 
the  court.  Crow  r.  Reed,  38  Ark. 
482  :   Wood  v.  Black,  84   Ind    279. 

::  Nance  v.  Nance,  1  S.  C.  n.  S. 
209. 


CHAP.  VIII.]  GUARDIAN'S   ACCOUNTS,   ETC.  §  372 

taiued  in  his  prior  accounts,  and  not  begin  with  the  balance  on 
the  last  one  ;  but  the  practice  in  this  respect  is  not  uniform  in 
the  United  States,  and  full  prior  accounts  on  file  might  well  be 
considered  in  the  final  connection.1  Guardians  sometimes  make 
settlements  out  of  court,  rendering  no  returns ;  but  this  practice 
is  not  common  where  the  infant's  estate  is  large ;  nor  is  it  safe, 
since  the  failure  to  account  is  a  breach  of  the  guardianship  bond, 
and  renders  the  sureties  and  the  guardian  himself  liable.  Any 
party  in  interest  may  compel  the  guardian  to  present  his  accounts 
years  after  the  guardianship  is  at  an  end,  notwithstanding  he 
has  a  receipt  in  full  from  the  ward ;  for  no  mere  lapse  of  time 
can  be  set  up  against  a  trust,  except  that  the  usual  limitation  to 
suits  on  specialties  might  determine  the  remedies  of  parties 
aggrieved  as  against  the  guardian  and  his  sureties.2  But  lapse 
of  time,  taken  in  connection  with  other  circumstances  showing 
a  due  execution  of  the  trust,  will  be  favorably  regarded  ;  and  the 
guardian's  account  need  not  then  be  so  strictly  made  up  and 
proved  as  would  be  otherwise  necessary,  especially  when  the  par- 
ties interested  are  satisfied.3  Where  no  effects  have  come  to 
the  guardian's  possession  or  knowledge,  he  need  not  file  either 
inventory  or  account;4  but  so  soon  as  there  is  property  his  lia- 
bility becomes  fixed;  and  he  cannot  be  exempted  from  account 
on  the  ground  that  the  ward's  estate  does  not  more  than  balance 
his  own  outlays  and  expenses.  The  final  account  is  not  allowed 
by  the  court,  at  the  ward's  majority,  until  the  ward  has  had  the 
opportunity  of  examining  it.5 

But  on  the  termination  of  a  guardian's  trust,  pending  the 
infancy  of  the  ward,  a  final  account  is  sometimes  allowed  after 
due  notice  to  all  parties  interested,  and  examination  by  a  suitable 
guardian  ad  litem  on  the  ward's  behalf;  and  thus,  too,  may  it 

1  Foltz's  Appeal,  55  Penn.  St.  428.  3  Gregg  v.  Gregg,  15  N.  H.  190; 
The  last  of  the  periodical  accounts  may  Pierce  v.  Irish,  31  Me.  254 ;  Smith  v. 
suffice.  Woodmansie  v.  Woodmansie,  Davis,  49  Md.  470 ;  Rawsou  v.  Corbett, 
32  Ohio  St.  18.  150  111.  466. 

2  Clarke  v.  Clay,  11  Post.  393 ;  Bard  4  McGale  v.  McGale  (1894),  R.  I. 

v.  Wood,  3  Met.  74;  Crane  v.  Barnes,  1  5  Woodbury   v.   Hammond,  54  Me. 

Md.  Ch.  151  ;  Wade  v.  Lobdell,  4  Cush.     332 ;  Whitney  v.  Whitney,  7  S.  &  M.  740 
510 ;  Gilbert  v.  Guptill,  34  111.  1 12.    See 
next  chapter. 

597 


§  373  THE   DOMESTIC    RELATIONS.  [PART    IV. 

be  with  an  intermediate  account ;  not,  however,  as  it  would 
usually  appear,  so  as  to  absolutely  debar  the  ward  from  dis- 
puting the  account  afterwards  on  reaching  majority.1  It  is  the 
duty  of  every  guardian,  whose  trust  as  such  is  revoked,  to  ac- 
count honestly  to  the  late  wards,  or  to  his  successor  in  the 
trust  if  there  be  one,  for  their  estate.  Thus,  a  guardian  cannot 
discharge  himself  by  simply  turning  over  to  his  successor  the 
latter's  note  for  an  individual  debt  due  the  guardian  and 
taking  a  receipt  in  full ;  but  he  will  still  be  bound  in  equity  to 
the  ward  unless  he  transfers  the  ward's  property,  or  mone}r  in 
lieu,  or  good  securities,  such  as  are  admitted  to  be  proper  invest- 
ments.2 Permitting  a  guardian  to  resign  or  removing  him  is, 
of  course,  no  judgment  that  a  full  settlement  and  accounting 
has  been  had.3  And  the  collusive  appointment  of  a  successor, 
together  with  a  collusive  settlement,  cannot  conclude  the  rights 
of  the  defrauded  party  in  interest,4 

§  373.  The  Same  Subject  — Where  the  same  person  is  both 
the  executor  of  the  parent's  estate  and  guardian  of  the  infant 
heir,  he  should  first  settle  his  executor's  account,  and  then 
transfer  the  balance  by  way  of  distributive  share  to  the  account 
of  guardianship.5  Accounts  of  joint  guardiaus  may  generally 
be  rendered  on  the  oath  of  one  of  them.6  Where  a  guardian 
dies,  resigns,  or  is  removed,  his  final  accouut  must  be  presented, 
and  it  is  the  successor's  duty  to  see  that  the  former  guardian  is 
held  to  a  strict  compliance  with  his  bond ;  since  otherwise  he 

1  See  Smith,  Prob.  Pract.  182;  Ra-  and  competent   to   receive   the   estate. 

couillal  v.  Requena,  36  Cal.  651  ;  Blake  See  as  to  such  decrees,  135  111.  257  ;  140 

17,    Pegram,    101    Mass.   592;    Jones    v.  111.603. 

Fellows,  58  Ala.  343;  Ilutton   v.  Wil-  4  Ellis  v.  Scott,  75  N.  C.  108;  Man- 

liams,  60  Ala.  133.     A  final  settlement  nine;  i>.  Manning,  61  Ga.  137. 
with   minor  wards  should    not   precede  5  Conkey   v.  Dickinson,   13  Met.  51  ; 

resignation.     Glassy. Glass,  80 Ala. 241.  Mattoon    v.   Cowing,    13    Cray,    387; 

-  Sage  v.  Hammonds, 27  Gratt.  651  ;  O'Hara  v.  Shepherd,  3  Md.  Ch.  306; 

Mannings.  Manning, 61  Ga,  137;  Coles  Crenshaw  '•.  Crenshaw,  4  Rich.  Eq.  14; 

i'.  Allen.  6 1  Ala  98.     Lee  State  v.  Bolte,  State  v.  Tunnell,  5  Harring.  94  ;  Runkle 

7_'  Mo.  il-i.  v.  Gale,  3  Halst.  Ch.  101  ;  9  Pick.  Eq. 

'■-  King  v.  Hughes,  52  Ga.  600.     No  408.     See  Mcintosh's  Estate,  158  Penn. 

-nek  settlement   is  practicable,  in  fart,  St.  525,  where  a  guardian  collected  as- 

a-    many   American    codes    should   be  sets  of  the  deceased, 
con  trued,  until  at  all  events  bheward         '•  See  Mass.  Gen.  Sts.  c.  101.    As  to 

has  reached  full  age,  or  a  new  probate  blending  accounts  as  guardian  and  tr as- 

lothed  with  his  ollicc,  tec,  see  Lewis  v.  Allred,  57  Ala.  628. 

598 


CHAP.  VIII.]         GUARDIAN'S    ACCOUNTS,    ETC.  §  373 

may  make  himself  liable  to  the  ward.1  The  final  account  of  a 
deceased  guardian  is  properly  presented  by  his  personal  repre- 
sentatives, who  may  be  cited  into  court  for  that  purpose  ;  but 
for  a  deficit  beyond  the  actual  assets  in  their  hands,  the  sureties 
must  answer.2  Hence  the  administrator  of  a  deceased  surety 
has  been  sometimes  permitted  to  supply  the  missing  final 
account.3  The  administrator  of  a  deceased  guardian  cannot 
invest  the  ward's  funds ;  nor  can  he  discharge  the  guardian's 
general  indebtedness  by  setting  apart  certain  effects  of  the 
guardian's  estate  for  that  purpose.4  Where  a  guardian  absents 
himself  and  has  left  an  attorney  in  charge  of  the  estate,  such 
attorney  may,  in  Pennsylvania,  be  summoned  by  the  court.5  It 
would  appear  that  a  guardian  cannot  be  cited  to  render  a  final 
account  before  the  ward's  majority,  unless  his  trust  has  been 
first  determined ;  and  that  Ids  balances  should,  in  such  case,  be 
paid  to  a  successor  and  not  to  the  court.6 

The  decree  of  the  court  allowing  a  partial  account,  wherein 
an  item  is  omitted  or  improperly  stated,  does  not  relieve  the 
guardian  from  liability  for  the  error  on  his  subsequent  accounts. 
He  must  make  the  necessary  correction  as  soon  as  possible.  At 
any  time  before  final  settlement  and  discharge  of  the  guardian 
ex  'parte  orders  made  by  the  court  may  be  set  aside,  corrected, 
and  modified ;  though  they  may  not  be  collaterally  attacked.7 
If  notes  are  inventoried  and  the  guardian's  accounts  do  not 
charge  him  therein  with  the  interest  thereon,  or  credit  him 
with  their  loss  as  worthless,  the  presumption  is  that  he  has  em- 
bezzled the  property  or  else  neglected  to  make  collections ;  and 
in  either  case  he  is  chargeable  for  the  full  amount.8     The  ac- 

1  Sage  v.  Hammonds,  28  Gratt.  651.  majority,  see  65  Cal.  228.     Simple  in- 

2  Gregg  v.  Gregg,  15  N.  H.  190;  terest  is  euough  to  charge  a  deceased 
Royston  v.  Royston,  29  Ga.  82  ;  Peck  guardian's  estate  from  the  date  of  his 
v.  Braman,  2  Blackf.  141 ;  Waterman  death.     33  W.  Va.  724  ;  §  354. 

v.  Wright,  36  Vt.   164;    19   Barb.  30;  3  Curtis  v.  Bailey,  1  Pick.  198. 

State  v.  Grace,  26  Mo.  87  ;  Hemphill  v.         *  Moorehead   v.  Orr,  1   S.  C.  x.  s. 

Lewis,  7  Bush,  214  ;   Tudhope  v.  Potts,  304.     And  see  supra,   §  314;  Clark  v. 

91    Mich.  490.     Nor   can   such   surety  Tompkins,  1  S.  C.  N.  s.  119. 
allege  waste  on  the  part  of  the  guar-         5  Petition  of  Getts,  2  Ashm.  441. 
dian's    administrator,    as    against    the         8  Hughes  r.  Ringstaff,  11  Ala.  564; 

ward.      Humphrey    v.    Humphrey,   79  Lewis  v.  Allred,  57  Ala.  628. 
N.  C.   396.     As  to  rendering  account         7  State  v.  Wheeler,  127  Ind.  451. 
wheu  guardian  died  long  after  his  ward's         8  Starrett  v.  Jameson,  29  Me.  504. 

599 


§  374  THE    DOMESTIC    RELATIONS.  [PART   IV. 

counts  should  include  only  transactions  between  guardian  and 
ward,  and  should  terminate  with  the  expiration  of  .the  trust ; 
since  the  relation  is  in  other  respects  as  between  debtor  and 
creditor.1  Valuations  should  be  reduced  to  the  lawful  standard 
of  currency.2  All  items  are  not  necessarily  proved  by  vouchers ; 
small  charges  may  be  allowed  on  the  guardian's  oath ;  and  oral 
proof  is  frequently  admissible  as  in  the  settlement  of  other 
probate  accounts.  In  the  settlement  of  a  guardian's  account, 
the  disposition  is  to  adjust  items  without  resort  to  a  circuity  of 
litigation  that  is  practically  needless.3  Nor  will  a  court  be 
captious  over  slight  irregularities  of  form  where  it  appears 
that  the  guardian  honestly  discharged  his  duties  and  finally 
accounted  fully  and  satisfactorily.4 

§  374.  The  Same  Subject  ;  Items  Allowed  the  Guardian  on 
Account. — We  have  anticipated  in  former  chapters  the  general 
principles  on  which  guardians  are  considered  liable  in  the  set- 
tlement of  their  accounts  :  as  for  instance  the  payment  of  inter- 
est on  sums  not  invested,  losses  of  money  by  bad  investment  or 
other  fault,  and  culpable  failure  to  collect  debts  or  other  delin- 
quency ;  also  the  proper  allowance  for  maintenance  and  educa- 
tion of  infants ;  and  other  matters  which  come  before  our  courts 
of  probate  jurisdiction  when  the  accounts  are  presented  for 
approval.  As  the  guardian  is  allowed  his  costs  and  expenses  in 
suits  on  the  ward's  behalf,  so  he  may  charge  bills  of  professional 
counsel  properly  paid  ;  and  this  too  when  the  charge  was  fairly 
occasioned  by  a  contest  over  his  accounts,  which  he  defended  ; 
but  he  cannot  make  the  estate  pay  for  advice  and  services  ren- 
dered on  his  own  account  under  any  colorable  pretext.5     And 

1  Cunningham    v.    Cunningham,    4  Tegram,   101    Mass.    502;  Voessing  v. 

Gratt.  43  j   CrowelTs  Appeal,  2  Watts,  Voessing,    4    Ftedf.    .360;     Moore    v. 

295.  Shields,  69  N.  C.  50  ;  89  Cal.  630.    The 

-'  Sic  McFarlane  v.  Handle,  41  Miss,  rule  in  sonic  St:itos  is  strict  that  a  guar- 

411  ;  Neilson  v.  Cook,  40  Ala.  498.  dian  who  is  a  counsellor  cannot  charge 

1  Cutts  /•.  Cutts,  58  N.  H.  602.     As  for  professional  services  rendered  byhim- 

fco  reopening    administration  accounts,  sell'.     Morgan  '•.  Mannas,  49  N.  V.  667. 

N      i        134.  But  cf.  Blake  v.  Pegram, supra.     Where 

1   129  I  ml.  412.  the  accounts  have  become  complex  and 

•'■  McElhenny's  Appeal, 46  Penn.  St.  intricate  through  the  guardian's  own 

:;i7;    Alexander  v.  Alexander,  8  Ala.  fault,  the  cost  of  stating  them  correctly 

796;    Neilson    o.   Cook,   40   Ala.  498;  ought  not  be  charged  to  the  ward.    150 

stab-  v.  i'o\,  65  \.  c  265;  Blake  v.  111.466. 
GOO 


CHAP.  VIII.]        guardian's  accounts,  etc. 


§374 


the  primary  liability  for  such  attorneys  as  he  employs  is  of 
course  his  own.1  Interest  has  been  allowed  on  sums  of  money 
necessarily  advanced  by  him  to  his  ward  ;  and  this  seems  reason- 
able.2 And  he  is  to  be  reimbursed  for  all  reasonable  and  proper 
expenses  incurred  by  him  in  the  management  of  his  ward's 
estate.3  xVlso  for  his  proper  advances.4  As  to  the  guardian's 
own  charges  for  the  maintenance  of  wards,  there  can  be  no  ques- 
tion that  he  is  neither  obliged  as  such  to  maintain  his  wards  at 
his  own  expense,  nor  justified  in  appropriating  their  earnings  to 
himself.  But  as  the  services  of  children  and  the  cost  of  their 
board  are  always  mutual  offsets,  the  courts  are  reluctant  to  allow 
charges  of  this  sort,  for  or  against  a  guardian  who  brings  up  his 
ward  in  his  own  family  ;  more  especially  where  the  claim  seems 
to  have  been  made  up  from  afterthought,  and  without  previous 
stipulation.  Intention,  on  his  part,  to  maintain  the  ward  gratui- 
tously may  be  inferred  from  circumstances.     In  this  sense  we 


A  retiring  guardian  should  not  be 
compelled  to  account  for  money  which 
his  successor  may  collect  equally  well. 
Mattox  v.  Patterson,  60  Iowa,  434.  A 
guardian  who  has  received  money  as 
such  cannot  escape  accounting  there- 
for by  setting  up  that  it  belongs  to 
some  one  else  than  his  wards.  89  X.  C. 
410.  His  failure  to  disclose  that  he 
has  received  money  for  his  ward 
amounts  to  a  conversion  thereof. 
Asher  v.  State,  88  Tud.  215.  He  can- 
not avoid  liability  to  account,  if  acting 
as  guardian,  by  denying  that  he  was 
appointed.  63  Miss.  323.  And  see  as 
to  fraudulent  concealment  of  worthless 
securities,  Slauter  v.  Favorite,  107  Ind. 
291.  Where  one  kept  his  accounts  so 
imperfectly  that  it  was  impossible  to 
say  whether  he  should  receive  certain 
credits  as  general  or  special  guardian, 
they  were  credited  one  half  to  each 
fund.     39  N.  J.  Eq.  394. 

1  §§  344,  346. 

-  Hay  ward  v.  Ellis,  13  Pick.  272; 
1 52  Mass.  328.  But  see  Evarts  v.  Nason, 
11  Vt.  122.  And  so  interest  received 
on  a  small  balance  may  stand  in  lieu  of 


compensation.  Mattox  v.  Patterson, 
60  Iowa,  434. 

3  Personal  services  as  a  mechanic 
or  architect  are  ruled  out  strictly  in 
some  States,  the  guardian  being  re- 
stricted to  his  statutory  commission. 
Morgan  v.  Hannas,  49  N.  Y.  667.  Other 
States  rule  differently  ;  their  rule  being 
that  of  a  fair  allowance  rather  than  a 
fixed  commission.  §  375.  A  guardian 
who  keeps  a  store  may  in  good  faith 
supply  the  ward's  necessaries,  and 
hence  charge  at  customary  rates  of 
profit.  Moore  v.  Shields,  69  N.  C.  50. 
But  this  principle  is  a  dangerous  one 
to  admit  far.  The  guardian  of  a 
wealthy  insane  adult  ward  may  fairly 
claim  compensation  for  luxuries  sup- 
plied him,  and  for  personal  visits  and 
care  suitable  to  the  ward's  welfare. 
May  v.  May,  109  Mass.  252.  As  to  es- 
timating necessaries  purchased  with 
depreciated  money,  see  73  Ala.  406. 
The  guardian  cannot  as  such  sue  his 
ward  for  necessaries,  having  no  prop- 
erty of  the  ward  in  possession  to  reim- 
burse him  for  maintenance.  McLane 
v.  Curran,  133  Mass.  531. 

*  Merkell's  Estate,  154  Penn.  St.  285 

601 


§  374  THE   DOMESTIC   RELATIONS.  [PART  IV. 

understand  certain  dicta  of  the  courts  to  the  effect  that  a  guar- 
dian cannot  charge  for  board  where  he  has  offered  to  bring  up 
the  ward  at  his  home  free  of  expense ;  for  it  is  to  be  supposed 
that  there  is  mutuality  in  all  contracts,  and  that  reasonable 
notice  might  terminate  any  liability  which  had  no  fixed  limit.1 
Like  principles  are  applicable  to  demands  against  the  guardian 
for  his  ward's  services,  which  courts  in  different  States  have 
frequently  had  occasion  to  consider.2  A  probate  guardian  who  is 
step-father  to  his  wards,  will  readily  be  presumed  to  stand  to 
them  in  the  place  of  a  father,  so  far  as  liability  for  their  support 
and  a  right  to  their  services  are  concerned ;  and  this  rule  may 
apply  where  he  occupies  their  house  for  many  years.3  But  there 
are  circumstances  under  which  a  guardian's  promise  to  the  ward 
not  to  charge  him  for  board  would  be  void  for  want  of  consid- 
eration4 This  general  subject  we  have  dwelt  upon  already.6 
And  it  should  be  borne  in  mind  that  the  guardian  is  not  to 
subject  his  ward's  estate  to  his  own  advantage. 

Eules  of  equity  still  prevail  to  a  considerable  extent  so  as  to 
hold  guardiaus  accountable  on  the  usual  footing  of  trustees. 
The  citation  to  render  account  in  the  probate  court  is  a  sum- 
mary proceeding,  resembling  the  bill  in  chancery  for  discovery. 
The  guardian  may  correct  mistakes,  but  not  dispute  his  ward's 

1  Manning  v.  Baker,  8  Md.  44;  Among  the  miscellaneous  items  which 
Armstrong  v.  Walkup,  9  Gratt.  372 ;  have  been  allowed  a  .miardian  in  his 
Hayden  \\  Stone,  1  Duv.  396 ;  Hendry  accounts  may  he  mentioned  that  of 
r.  Hurst,  22  Ga.  312;  Cunningham  v.  bona  fide  expenses  incurred  in  removing 
Pool,  9  Ala.  615.  Owen  v.  Peebles,  42  the  ward  to  another  State.  Cummins 
Ala.  338,  recognizes  a  guardian's  claim  v.  Cummins,  29  111.  452. 

for  keeping  his  ward's  horse,  in  a  proper  8  Mulhern  v.  McDavitt,  16  Gray, 
case.  Equity  disinclines  to  charge  for  404;  supra,  c.  5. 
a  ward's  maintenance  for  the  benefit  4  Keith  v.  Miles,  39  Miss.  442. 
of  the  guardian's  general  creditors.  6  See  §  335.  A  guardian  who  ad- 
Griffith  v.  Bird,  22  Gratt  73.  Or  to  vances  money  for  his  ward  over  and 
allow  the  guardian  for  supporting  the  above  the  income  of  his  estate,  in  order 
ward  before  his  appointment,  except  to  set  him  up  in  business,  without  ob- 
under  strong  circumstances.  Olsen  v.  taining  leave  of  the  court,  cannot 
Thompson,  77  Wis.  666.  Trumped-up  charge  his  ward  with  it.  Shaw  v. 
claims  of  maintenance  are  of  coursedis-  Coble,  63  N.  C.  377.  Judicial  consent 
allowed.     85  Cal.  98;  86  Wis.  99.  to  expenditures   in  excess   of  the    in- 

2  Phillips  v.  Davis,  2  Smcd,  520;  come  may  be  inferred  from  the  court's 
Calhoun  u  Calhoun,  41  Ala.  369;  approval  of  the  guardian's  regular  ac- 
I  iy,  1  S.  C  x.  s.  837  J  counts.  Cook  v.  Rainey,  61  Ga.  452 
Armstrong   v.  Walknp,   12   Gratt.   608.  (a  statute  case). 

602 


CHAP.  VIII.]         GUARDIAN'S   ACCOUNTS,   ETC.  §  375 

rights  at  pleasure.1  He  is  presumably  liable  to  his  ward  for  the 
nominal  amount  of  debts  due  to  the  ward's  estate  which  he  has 
failed  to  collect ;  and  if  they  were  not,  by  the  exercise  of  good 
business  judgment,  collectible  for  their  face,  he  should  be  able  to 
show  this.2  He  may  be  charged  by  the  court  with  the  amount 
lost  by  a  bad  investment.3  He  is  liable  not  only  for  what  he 
actually  receives,  but  what  he  ought  to  receive.4  And  where 
he  or  any  other  trustee  claims  credit,  upon  settling  his  account, 
for  moneys  expended,  losses,  or  charges,  the  onus  of  proving  the 
correctness  of  the  credit,  by  vouchers  or  otherwise,  devolves  on 
him.5  On  the  other  hand,  the  ward's  estate  is  subject  to  all 
liabilities  properly  incurred  in  the  coarse  of  the  guardian's 
judicious  management  of  it.6  The  accounts  should  be  accurate 
in  debits  and  credits,  and  inaccuracies  are  corrected.7 

§  375.  Compensation  of  Guardians.  —  One  rule  has  always 
prevailed  in  England  as  to  the  compensation  of  executors,  guar- 
dians, and  other  trustees ;  namely,  that  the  services  rendered 
should  be  treated  as  honorary  and  gratuitous.  Chancery  makes 
no  allowance  of  any  sort  beyond  a  reimbursement  for  the  neces- 
sary expenses  actually  incurred.  However  much  the  honor  of 
being  trusted  may  be  deemed  a  fair  equivalent  for  the  guardian's 
time,  trouble,  and  responsibility,  it  is  not  found  to  suffice  for 
receivers  and  other  officers  of  the  court  of  chancery,  whose  fees 
may  in  some  measure  tend  sensibly  to  diminish  the  ward's  sense 
of  gratitude  to  the  custodians  of  his  fortune.  It  is  found  neces- 
sary to  allow  compensation  to  trustees  in  some  of  the  British 
colonies,  in  order  to  induce  suitable  men  to  accept  office;  and 
even  in  the  English  courts  at  the  present  day  there  is  a  strong 


1  Re  Steele,  65  111.  322.  Costs  in  a  4  State  v.  Womack,  72  N.  C.  397  ; 
suit  not  connected  with  the  guardian-  Stothoff  v.  Reed,  32  N.  J.  Eq.  213. 
ship  cannot  be  charged.  40  N.  J.  Eq.  5  Matter  of  Gill,  5  Thomp.  &  C.  237  ; 
181.  As  to  compensation  of  a  spe-  Newman  v.  Reed,  50  Ala.  297;  Hutton 
cial  guardian  who  defends  an  infant's  v.  Williams,  60  Ala.  133;  127  Ind.  451. 
interest  in  the  probate  of  a  will,  see  B  Owens  v.  Mitchell,  38  Tex.  588. 
100  N.  Y.  203.  The  guardian  of  a  As  to  carriage  hire,  see  57  Ark.  190. 
lunatic  may  include  in  his  account  a  7  An  honest  error  which  charges 
debt  due  from  the  lunatic  to  himself,  the  guardian  twice  for  the  same  fund 
80  Va.  58.  should  be  corrected,  85  Ga.   542.     Or 

2  Seigler  v.  Seigler,  7  S.  C.  317.  an    honest     omission.    43     Kan.    175. 
8  Kimball  v.  Perkins.  130  Mass.  141.  And  see  57  Ark.  304. 

603 


§o7D 


THE   DOMESTIC    RELATIONS. 


[PART  IV. 


inclination  to  multiply  exceptions  to  the  general  rule.  Con- 
siderations of  policy  are  alleged  in  support  of  the  established 
doctrine  of  chancery;  but  the  arguments  seem  not  unanswerable. 
In  this  country  compensation  is  allowed  the  guardian,  while  the 
probate  court  fees  are  usually  trifling  in  comparison.  And  it 
does  not  appear  that  the  English  rule  as  to  the  gratuitous 
services  of  trust  officers  was  ever  adopted  in  a  single  State.1 


1  See  Story,  Eq.  Juris.  §  1268,  and  n. ; 
and  §  1268  a  ;  Schouler,  Ex'rs,  Part 
VII.  j  2  Wms.  Ex'rs,  1682-1685,  and 
eases  cited.  In  some  parts  of  this 
country  custom  or  the  local  law  has 
established  a  commission  as  the  guar- 
dian's compensation.  In  others  the 
statute  allows  what  the  court  may  deem 
just  aud  reasonable.  The  commission 
allowed  the  guardian  has  varied,  ac- 
cording to  different  decisions  and  under 
special  circumstances,  all  the  way  from 
one  to  ten  per  cent,  which  last  may  be 
a  >nsidered  the  maximum.  Holcombe  v. 
Holcombe,  2  Beasl.  415;  In  re  Har- 
land's  Accounts,  5  Kawle,  323  ;  Walton 
v.  Erwin,  1  Ired.  Eq.  136 ;  Armstrong 
v.  Walkup,  12  Gratt.  60S.  In  New- 
York  the  rule  established  for  trustees 
is  five  per  cent  on  sums  not  exceeding 
one  thousand  dollars  ;  half  that  amount 
upon  all  sums  between  that  and  five 
thousand  dollars ;  and  one  per  cent  on 
all  sums  exceeding  that  amount.  Mat- 
ter of  Roberts,  3  Johns.  Ch.  43.  And 
this  rule  practically  obtains  in  many 
other  States.  One  half  the  commission 
is  reckoned  for  sums  received,  and  one 
half  for  sums  disbursed.  They  are  to 
be  computed  by  a  guardian  at  the  foot 
of  partial  accounts  or  about  the  time 
of  actual  receipt  and  disbursement, 
and  not  when  they  are  brought  for- 
ward upon  bis  final  account.  Huffer's 
Appeal,  2  Grant,  341  ;  Vanderheyden  v. 
Vanderheyden,  2  Paige,  287.  Where 
commissions  at  the  court's  discretion 
are  allowed,  special  services  performed 
by  the  guardian  may  be  considered  in 

fixing  the    rat'-   of  commission,  but  not 
as    an    additional    charge.      Yet   it   is 
i  red  in  a  Pennsylvania  case, 
C04 


that  since  the  guardian  is  a  trustee  for 
custody  and  management,  and  not,  like 
an  executor,  merely  for  distribution, 
what  is  allowable  to  the  one  may  not 
always  suffice  for  the  other.  McElhen- 
ny's  Appeal,  46  Penn.  St.  347.  Even 
in  New  York  the  unfairness  of  an  in- 
flexible rule,  applicable  to  all  who  hold 
trust  moneys,  led  to  the  assertion  of 
a  doctrine  in  one  case,  which  threat- 
ened to  disturb  the  chancery  rule ; 
namely,  that  services  of  a  professional 
or  personal  character,  rendered  the 
ward,  may  be  allowed  to  the  guardian, 
besides  the  usual  commission,  on  the 
ground  that  they  were  rendered  not 
as  guardian  but  as  an  individual. 
Morgan  v.  Morgan,  39  Barb.  20.  But 
see  Morgan  v.  Hannas,  49  N.  Y.  667.  In 
Maine,  Massachusetts,  and  other  States, 
where  the  court  allows  what  is  reason- 
able, the  guardian  may  charge  specific 
sums  fur  special  services,  instead  of  or 
in  addition  to  a  commission,  provided 
the  whole  does  not  exceed  a  fair  rate 
of  compensation.  Longley  v.  Hall,  11 
Pick.  120;  Rathbun  v.  Colton,  15  Pick. 
471;  Emerson,  Appellant,  32  Me.  159; 
Dixon  v.  Homer,  2  Met.  420  ;  Roach  v. 
Jelks,  40  Miss.  754;  Evarts  v.  Nason, 
11  Vt.  122.  The  ordinary  commission 
is  properly  refused  for  disbursement  of 
the  guardian's  final  balance  to  the  ward, 
and  his  receipt  of  the  original  fund  ; 
nor  is  it  allowable  on  the  principal  in 
mere  reinvestments.  Commissions  may 
be  forfeited  by  the  guardian's  miscon- 
duct: as  where  the  fund  was  employed 
in  his  own  business;  or  where  he  was 
removed  from  his  trust ;  but  not,  iu 
some  States,  for  the  mere  omission  to 
account   until    cited    in.     Clerk  hire  is 


CHAP.  VIII.]  GUARDIAN'S   BOND,   ETC. 


§  376 


§  370.   Suit  on  the  Guardian's    Bond   for  Default   and   Miscon- 
duct. —  For  the  default  and  misconduct  of   the    guardian    the 

proper  remedy  is  by  suit  on  the  probate  bond.  And  such  suits 
are  brought  in  the  name  of  the  judge,  or  the  State,  according  to 
the  requirements  of  statute,  for  the  benefit  of  the  person  or 
persons  injured.1  This  is  the  usual  remedy  for  creditors  as  well 
as  the  ward  himself  and  his  next  of  kin  ;  not,  however,  the  only 
one  open  to  the  former,  as  we  have  already  seen,  according  to 
the  rule  of  some  States.2  In  most  States  the  guard  inn's  bond 
cannot  be  sued  until  he  has  been  summoned  before  the  proper 
court  to  account ;  nor  until  leave  of  that  court  has  been  first  ob- 
tained ;  except  in  certain  cases  of  debts  which  appear  of  record.3 


properly  charged  as  an  expense  to  the 
estate  in  cases  of  magnitude  and  diffi- 
culty, where  such  assistance  is  required. 
Vauderhevden  v.  Vauderhevden,  2 
Paige,  287;  Kuowlton  v.  Bradley,  17 
N.  H.  458  ;  Trimble  v.  Dodd,  2  Tenu. 
Ch.  500 ;  Starrett  v.  Jameson,  29  Me. 
504;  Royston  v.  Royston,  29  Ga.  82; 
Magruder  v.  Darnall,  6  Gill,  269; 
Reed  v.  Ryburn,  23  Ark.  47  ;  Neilson 
r.  Cook,  40  Ala.  498;  Bond  v.  Lock- 
wood,  33  HI.  212.  See  §  350  as  to 
a  collector.  Commissions  are  properly 
credited  at  the  time  the  money  was  re- 
ceived. Suavely  v.  Harkrader,  29  Gratt. 
112.  Cf.  May  v.  May,  109  Mass.  252. 
A  guardian  who  is  also  trustee  should 
uot  be  allowed  full  commissions  on  both 
his  guardian  and  trustee  accounts,  where 
the  performance  of  double  services  is 
merely  nominal.  Blake  w.Pegram,  101 
Mass.  592.  Only  on  sums  actually  col- 
lected and  paid  out  should  a  guardian 
charge  commissions.  Reeds  v.  Tim- 
mins,  52  Tex.  84.  Vouchers  are  not 
needed  to  sustain  items  of  this  charac- 
ter. Newman  v.  Reed,  50  Ala.  297. 
See  53  Vt.  460. 

A  guardian  will  not  be  allowed  com- 
pensation for  taking  care  of  the  trust 
fund  while  he  himself  is  the  borrower 
of  it.  Farwell  v.  Steen,  46  Vt.  678. 
And  see  Pierce  v.  Prescott,  128  Mass. 
140.  As  to  compensation  for  changing 
investments,  repairs,  &c,  it  is  not  good 


policy  to  allow  it  by  way  of  a  commis- 
sion. May  v.  May,  109  Mass.  252. 
Guardian  allowed  to  charge  special 
fees  for  collecting  a  pension  for  his 
ward.  60  Miss.  509 ;  Southwick  v. 
Evans,  17  R.  1.  198.  Commissions  not 
allowed  on  a  fund  of  ward  employed  in 
guardian's  own  business,  though  advan- 
tageously employed.  Seguiu's  Appeal, 
103  Penn.  St.  139;  cf.  94  N.  C.  194. 
Compensation  for  maintenance  does  not 
deprive  necessarily  of  commissions.  14 
Phil.  3,  9.  See,  further,  4  Dem.  299. 
Remissness  in  duty  is  an  objection  to 
the  allowance  of  commissions.  13  Lea, 
554.  And  where  one  collects  money, 
uses  it,  and  renders  no  account  until 
compelled  to,  he  may  be  charged  with 
interest  and  otherwise  sternly  dealt 
with.  85  Cal.  98.  But  making  a 
doubtful  investment  which  turns  out 
beneficially  ought  not  to  deprive  one  of 
compensation.     144  Penn.  St.  293. 

1  Davis  v.  Dickson,  2  Stew.  370; 
Potter  v.  State,  23  Ind.  607  ;  Pearson  v 
McMillan,  37  Miss.  588. 

2  Supra,  §§  337,  343,  n. 

3  Stillweil  v.  Miles,  19  Johns.  304  ; 
Bailey  v.  Rogers,  1  Greenl.  186  ;  78 
Me.  24 ;  Salisbury  v.  Van  Hoesen,  3 
Hill,  77  ;  21  Neb.  534  ;  Jarrett  v.  State, 
5  Gill  &  Johns.  27  ;  Hunt  v.  White,  1 
Cart.  105 ;  Foteaux  v.  Lepage,  6  Iowa, 
123;  Amnions  v.  People,  11  111.  6; 
Pratt  v.  McJunkin,  4  Rich.  5 ;  Justices 

605 


§377 


THE   DOMESTIC    RELATIONS. 


[PART  IV. 


The  reason  is  that  the  balances  due  from  the  guardian  and  the 
extent  of  his  liability  cannot  be  precisely  ascertained  until  the 
accounts  are  presented;  moreover,  the  failure  to  account  in 
obedience  to  judicial  mandate,  or  to  turn  over  the  property 
according  to  a  balance  shown  on  such  accounting,  fixes  the 
delinquency.  So,  too,  while  the  guardian  may  sue  his  ward, 
after  the  latter  attains  majority,  when  it  appears  that  the  final 
indebtedness  is  in  his  own  favor,  he  must  wait  until  the  court 
has  ascertained  and  decreed  its  amount.1 

§  377.  The  Same  Subject ;  Remedies  against  and  on  behalf  of 
Sureties. —  As  to  sureties,  it  is  said  that  they  may  be  sued  with- 
out a  previous  suit  against  the  principal ;  the  common-law  rule, 
that  an  executor  must  first  be  found  guilty  of  devastavit,  being 
held  inapplicable  to  guardians.2  But  here,  again,  in  the  absence 
of  an  accounting  or  a  delinquency  fixed  in  the  proper  court  suit 


v.  Willis,  3  Yerg.  461  ;  O'Brien  v. 
Strang,  42  Iowa,  643 ;  Allen  v.  Tiffany, 
53  Cal.  16;  Hailey  v.  Boyd,  64  Ala. 
399;  Ordinary  v.  Heishon,  42  N.  J.  L. 
15.  But  a  guardian  cannot  prevent 
an  action  on  his  bond  by  failure  to 
account.  YVanu  v.  People,  57  111.  202. 
As  for  chancery  bill  of  account,  in  case 
of  quasi  guardianship,  see  next  c.  As 
to  abatement  of  summary  proceedings 
to  account  by  the  guardian's  death,  see 
Earvey  v.  Harvey,  87  111.  54. 

1  Smith  v.  Philbrick,  2  N.  H.  395  ; 
Shollenberger's  Appeal,  21  Penn.  St. 
337.  In  certain  peculiar  instances, 
where  the  extent  of  the  guardian's  lia- 
bility has  been  otherwise  as  definitely 
determined  ;is  it,  could  be  by  an  ac- 
counting, it  is  held  that  a  decree  may 
be  entered  against  the  guardian  for  the 

amount,   tl gh  no  account  has  been 

taken.  Sage  v.  Hammonds,  27  Gratt. 
651  ;  and  even  that  an  accounting  is 
uot  a  prerequisite  t<>  an  action  against 
the  sureties.  21  linn,  :>,lt);  142  N.  Y. 
545,  See  55  Iowa,  IK).  For  the  Illi- 
nois rule,  see  103  111.  142.  But  an 
accounting  is  usually  a  prerequisite  to 
suit  on  t he  bond.  In  an  acl ion  on  a 
guardian's  bond  the  writ  should  be  in- 
I  ',\ii  h  i  be  name  of  the  person  for 

GOG 


whose  benefit  suit  is  brought.  14  R.  I. 
291.     And  see  91  Mich.  490. 

In  an  action  on  a  guardian's  bond, 
the  burden  is  on  plaintiff  to  show  a 
breach  of  its  conditions  ;  while  in  ex- 
ceptions to  the  account,  the  burden  is 
on  the  guardian  to  justify  his  expendi- 
tures, deductions,  and  allowances.  127 
Ind.  451.  But  whatever  the  onus  in 
items  of  account,  the  ultimate  decision 
rests  with  the  court  on  a  settlement ; 
and  the  court  will  neither  exercise  a 
severity  which  might  deter  prudent 
men  from  accepting  such  trusts,  nor 
sanction  a  laxity  of  diligence  which 
might  invite  men  to  accept  for  gain. 
92  Ala.  545. 

2  State  v.  Strange,  1  Smith  (Ind.), 
307  ;  Call  v.  Ruffin,  1  Call,  333;  1  Met. 
(Ky.)  22.  And  see  Horton  v.  Hbrton, 
4  Tred.  Eq  54;  Moore  v.  Baker,  39  Ala. 
704;  Moore  v.  Hood,  9  Rich.  Eq.  311  ; 
Potter  v.  Iliscox,  30  Conn.  508;  Clark 
v.  Montgomery,  23  Barb.  464.  In  a 
suit  by  the  ward  against  his  guardian 
and  the  sureties  on  the  bond,  a  decree 
may  be  rendered  at  once  against  all  ; 
the  ward  need  not  pursue  the  guardian 
first.  Barnes  v.  Trafton,  80  Va.  524. 
The  personal  representative  of  a  de- 
ceased    insolvent   guardian   is   not   a 


CHAP.  VIII.]  GUAEDIAN'S    BUND,    ETC. 


§377 


cannot  usually  be  maintained.1  No  fraudulent  and  deceptive 
settlement  of  the  guardian  with  his  ward  on  the  latter's  majority, 
nor  even  the  court's  approval  thus  induced,  can  shield  sureties 
when  the  whole  transaction  is  set  aside  on  judgment  as  void.2 
To  all  suits  on  guardians'  bunds  there  is  a  limitation  prescribed 
by  law.  Thus  in  Massachusetts  the  period  is  four  years  from 
the  time  the  guardianship  terminates,  whether  by  death,  re- 
moval, or  resignation  of  the  guardian,  or  the  arrival  of  the  infant 
ward  at  full  age ;  and  the  same  rule  applies  to  general  and 
special  bonds.3  In  some  other  States  the  period  is  five  years.4 
In  Indiana  it  is  three  years.5  Where  no  special  period  is  fixed 
by  law,  the  ordinary  limitation  to  suits  on  sealed  instruments 
must  be  held  to  apply.6 

Sureties,  as  well  as  the  guardian,  are  concluded  in  the  absence 
of  fraud  or  palpable  error,  by  the  amount  deliberately  adjudged 
due  from  the  guardian  on  settlement  of  his  accounts,  usually  in 
a  probate  court.7     They  cannot  become  parties  to  the  accounting 


necessary  party  to  the  ward's  suit  in 
equity  against  a  surety.  77  Ala.  496. 
As  to  demand,  see  106  Ind.  251  ;  87 
Ind.  102.  But  there  should  usually  be 
a  judgment  against  the  guardian  be- 
fore money  can  be  made  out  of  the 
sureties.  71  Ga.  49.  Cf.  Wolfe  v.  State, 
59  Miss.  338. 

1  See  §  376,  notes.     But  cf.  §  369. 

2  Douglass  v.  Ferris,  138  N.  Y.  193 ; 
Parr  v.  State,  71  Md.  220  ;  State  v. 
Branch  (1894),  Mo. 

8  Loring  v.  Alline,  9  Cush.  68.  And 
see  Favorite  v.  Booher,  17  Ohio  St. 
548. 

4  Johnson  v.  Chandler,  15  B.  Monr. 
584. 

5  State  r.  Hughes,  15  Ind.  104. 

6  England  o.  Justices,  10  Ga.  65; 
Woodbury  v.  Hammond,  54  Me.  332. 
It  runs  from  the  day  the  ward  becomes 
of  age.  State  v.  Henderson,  54  Md. 
332.  And  see  61  Iowa,  605.  The  limi- 
tation begins  to  run  from  the  time 
when  the  guardian  settles  his  account 
and  is  ordered  to  pay  over,  not  from 
the  date  of  his  informal  accounting  to 
the  ward,  the  statute  designating  the 


time  of  a  guardian's  "  discharge."  Or- 
leans Probate  Court  v.  Child,  51  Yt. 
82.  Cf.  Motes  v.  Madden,  14  S.  C. 
488. 

7  Commonwealth  v.  Ehoads,  37 
Penn.  St.  60;  Braiden  v.  Mercer,  44 
Ohio  St.  339  ;  McCleary  v.  Menke, 
109  111.  294;  39  Ark.  145.  In  numer- 
ous late  instances,  however,  a  decree 
rendered  against  a  guardian  is  held  not 
conclusive  against  sureties  who  were 
not  parties  to  the  final  accounting. 
So  that  the  latter  may  show,  in  reduc- 
tion of  their  liability,  that  the  guar- 
dian failed  to  charge  the  wards  with 
boarding,  tuition,  or  his  own  compen- 
sation, or  made  improper  charges  in 
their  favor  against  himself.  Daven- 
port v.  Olmstead,  43  Conn.  67  ;  State 
v.  Hull,  53  Miss.  626 ;  Kinsey  v.  State, 
71  Ind.  32;  81  Ind.  62;  76  Ya.  731  ; 
State  v.  Hoster,  61  Mo.  544 ;  Sanders 
v.  Forgasson,  3  Baxt.  249.  And  see  96 
N.  C.  34.  So  may  the  sureties  have 
the  benefit  of  a  debt  lawfully  charge- 
able in  account  with  the  ward,  which 
the  creditor  releases  bona  fide  to  the 
guardian  person  all  v.     Kinsey  v.  State, 

607 


§377 


THE   DOMESTIC   RELATIONS. 


[PART   IV. 


of  their  principal,  either  in  the  original  proceedings  or  on 
revision.1  Where  sureties  are  compelled  to  respond  in  damages 
for  the  default  of  their  guardian,  they  may  seek  indemnity  from 
his  property ;  they  are  entitled  to  be  subrogated  to  the  remedies 
of  the  ward  against  their  principal,  subject,  however,  to  equities 
against  the  ward.2  Equity  also  allows  them  to  enforce  contri- 
bution as  among  themselves.  Thus,  if  co-sureties  on  one  bond 
pay  the  whole  amount  of  a  deficiency,  they  may  use  the  other 
bond  to  obtain  a  proportional  reimbursement.3  So  where  there 
are  three  co-sureties,  and  one  proves  insolvent,  the  surety  who 
has  responded  in  damages  to  the  full  extent  may  compel  his 
solvent  co-surety  to  pay  him  one-half  of  the  amount.4  A  surety 
may  always  take  security  from  his  principal  for  his  own  in- 
demnity, and,  if  default  occurs,  reimburse  himself  from  the  prin- 
cipal's own  property  like  any  other  creditor.  But  it  stands  to 
reason  that  the  surety  of  a  guardian  cannot  secure  himself  by 
any  pledge  of  the  ward's  property  ;  for  this  would  be  permitting 
fraud  in  order  to  prevent  fraud,  and  the  infant's  pretended  secu- 
rity would  be  to  him  no  security  at  all.5  A  fraudulent  trans- 
fer of  property  by  the  surety  of  an  insolvent  guardian  may  be 
impeached  on  the  ward's  behalf.6     In  a  suit  against  sureties  on  a 


71  Ind.  .32.  Special  penalties  may  be 
assessed  under  some  local  statutes,  on  a 
defaulting  guardian's  bond.  Stroup  v. 
State, 70  Ind.  495  j  106lud.251.  Sure- 
ties cannot  set  up  their  principal's  mis- 
appropriation with  the  ward's  conni- 
vance while  under  age.  Judge  of  Pro- 
hate  v.  Conk,  57  N.  II.  450.  See  also 
Scobey  v.  Gano,  35  Ohio  St.  550;  100 
111.  366. 

i  /„  n  Scott's  Account,  3G  Vt.  297. 
But  see  Curtis  v.  Bailey,!  Pick.  198. 
In  an  action  on  a  guardian's  bond  his 
accounting  and  discharge  in  court  can- 
not lie  attacked.  State  v.  Slauter, 
80    I iel.  51)7.     Sureties   cannot   set   up 

as    t'>    the    guardian's    ace t 

in  which  they  have  no  interest.  19 
Bla.  373.     And    as    to    the    guardian's 

■  to  settle  accounts,  see  59  N.  II. 
547. 

2  Adams   v.   Chaves,   10  Lea,  367; 

608 


State  v.  Atkins,  53  Ark.  303.  And  see 
as  to  proceedings  against  the  lands  of  a 
deceased  guardian,  Richardson  v.  Day, 
20  S.  C.  412. 

3  Commonwealth  v.  Cox,  36  Penn. 
St.  442.  See  Baugh  v.  Boles,  35  Ind. 
524. 

4  Waller  v.  Campbell,  25  Ala.  544. 
See   State  v.  Paul's  Ex'r,  21   Mo.  51 
Jamison   v.   Crosby,    11    Humph.    27.'! 
Ilocker   v.   Woods,  33   Penn.  St.  466 
Haygood  v.  McKoon,  49  Mo.  77. 

5  l'oultney  v.  Randall,  9  Bosw.  232; 
Foster  v.  Bisland,  23  Miss.  296  ;  Miller 
v.  Carnal],  22  Ark.  274 ;  Howell  v. 
Cobb,  2  Cold.  104.  It  is  not  against 
public  policy  for  the  guardian  to  de- 
posit part  of  the  ward's  securities  with 
the  surety  as  indemnity.  Rogers  v. 
Hopkins,  70  Ga.  454. 

8  Benson  v.  Benson,  70  Md.  253. 


CHAP.  IX.]    RIGHTS   AND    LIABILITIES    OF   THE   WARD.      §379 

guardianship  bond,  if  one  of  the  sureties  is  dead,  his  personal 
representatives  should  be  joined.1 


CHAPTER   IX. 

RIGHTS   AND    LIABILITIES    OF    THE   WARD. 

§  378.  General  Rights  of  the  Ward.  —  Having  treated  at 
length  of  the  rights  and  liabilities  of  guardians,  their  appoint- 
ment and  removal,  and  the  settlement  of  their  accounts,  it  only 
remains  for  us  to  consider  the  powers  and  duties  of  the  ward 
himself.  Some  of  these  have  been  already  noticed  incidentally ; 
others,  so  far  as  minor  wards  are  concerned,  fall  within  the 
general  scope  of  Infancy  ;  but  a  few  legal  principles  remain  for 
discussion  under  the  present  head,  to  which  we  shall  now  direct 
the  reader's  attention. 

§  379.  Doctrine  of  Election  as  to  Wards,  Insane  or  Infant.  — 
There  is  a  distinction  to  be  drawn  between  infant  wards,  and 
insane  persons  or  spendthrifts  under  guardianship.  As  to  the 
former,  the  law  recognizes  a  growing  responsibility,  as  it  were, 
on  their  part ;  a  postponement  of  many  rights  and  duties  to 
the  period  of  maturity,  but  not  utter  and  total  suspension  or 
loss.  Hence  sales  made  and  contracts  performed  while  an 
infant  ward's  disabilities  last  are  frequently  held  subjected  to 
his  future  approval,  being  treated  as  neither  absolute  nor  yet 
void  in  the  mean  time.  Hence  is  that  principle  of  election  so 
constantly  asserted  at  law  on  his  behalf  ;  hence,  too,  the  right 
he  exercises,  when  of  age,  of  passing  in  review  accounts  old  and 

1  Lynch  v.  Rotan,  39  111.  14.     A  re-  68  111.  193.     The  bond  of  a  guardian  of 

lease   of  a   surety  by  payment  of   an  several    infants    may   be    sued  on   for 

amount  less  than  the  principal  owed  is  those  surviving,   where  any  are  dead, 

not  a  full  discharge  of  the  principal.  Winslow  v.  People,  117  111.  152. 
Carroll  v.  Corbitt,  57  Ala.  579.  A    surety  is   liable   for   a  debt  due 

As  to  suits  on  a  guardian's  bond,  on  from  the  guardian  to  his  ward  when 

the  relation  of  one  or  more  wards  where  appointed,  if  the   guardian   was    then 

there  are  other  wards,  see  Colburn    v.  solvent.     91  Ky.  422. 
State,  47  Ind.  310;  Scheel  v.  Eidman, 

39  609 


§  380  THE   DOMESTIC    RELATIONS.  [PART  IV. 

almost  forgotten,  to  ascertain  the  balance  justly  due  him.  But 
as  to  insane  persons  and  spendthrifts,  their  responsibilities  are 
for  the  time  blotted  out ;  the  disability  may  be  temporary  or  it 
may  be  permanent ;  but  while  it  lasts,  it  is  complete  ;  and  it 
may  be  essential  that  transactions  on  their  behalf  should  stand 
or  fall,  irrespective  of  their  choice,  and  beyond  the  possibility  of 
their  future  interference.  Tbis  suggestion  we  throw  out  simply 
by  way  of  caution  ;  for  while  the  same  principles  are  constantly 
applied  by  inference  to  all  wards  alike,  it  is  unsafe  to  draw 
broad  conclusions  or  argue  with  confidence  from  mere  analogies 
between  these  different  classes  of  wards.1 

§  380.  Same  Subject ;  Insane  Persons  and  Infants  Contrasted. 
—  Thus  it  is  asked  whether  an  insane  person  under  guardian- 
ship can  make  a  will,  if  in  fact  compos  mentis.  Clearly,  ques- 
tions of  mental  capacity  and  undue  influence  may  arise  whenever 
a  will  is  presented  for  probate.  And  prima  facie  an  insane 
person,  if  not  a  spendthrift,  under  guardianship,  is  non  compos 
mentis,  and  his  testamentary  capacity  may  well  be  doubted.  It 
is  settled,  however,  in  various  States  that  a  valid  will  may  be 
executed  by  a  person  under  such  guardianship,  notwithstanding 
the  circumstances  of  his  situation;  the  fact  of  testamentary 
capacity  at  the  date  of  execution  being  open  to  proof.2  As  to 
the  contract  of  a  spendthrift  or  insane  person  made  before  he 
was  placed  under  guardianship,  the  law  favors  the  guardian's 
ri^ht  of  disaffirmance  to  a  certain  extent,  notwithstanding  the 
ward  was  an  adult  when  the  contract  was  made ;  on  the  ground, 
apparently,  that  the  person  now  a  ward  was  not  fit  to  make  a 
contract  in  his  own  right  which  should  bind  his  estate.3     And 

1  Thus,  in  Vermont,  it  is  held  that  3  Coombs  v.  Janvier,  2  Vroom,  240 ; 

a  spendthrift  may  be  compelled  to  give  Chandler  v.   Simmons,  97  Mass.   508. 

security  to  the  town  of  his  settlement  But  see,   as   to   the   wife's   agency  to 

i  lo  -  by  his  becoming  chargeable  manage  his  business,  Motley  v.  Head, 

afterwards  as  a  pauper,  as  a  condition  43  Vt.  633.    The  contract  of  a  person 

for  lii-  release  from  guardianship.    Wil-  not  under  guardianship  but  of  unsound 

liston  v.  White,  n  N't.  40.  mind  is  not  necessarily  void,  but  will 

-  Breed  v.  Pratt,  18  Pick.  115.    The  be  held  voidable  <>r  not,  according  to 

letters   oi    guardianship  afford    prima  circumstances.     Copenrath  v.  Kieuby, 

proof  of  testamentarj  incapacity,  83   [nd.   18.     And   see,  as  to  vesting 

but    nothing  conclusive,  Bave  perhaps  chattel  mortgage  rights  in  the  innocent 

where  one  is  adjudged  an  idiot.    Bchou-  mortgagee,   where   the   mortgage   was 

fer  Wills  '  '  ^1,82.  made  by  one  apparently  sane  and  not 

610 


CHAP.  IX.]    RIGHTS    AND   LIABILITIES    OP  THE   WARD.       §  381 


yet  the  rule  here  must  differ  greatly  from  that  applicable  to 
infants.  An  insane  person  having  no  legal  guardian  may  sue 
by  any  competent  person  as  his  next  friend,  and  the  question 
of  sanity  or  insanity  involved  in  the  transaction  may  be  tried 
collaterally.1 

§  381.  Responsibility  of  Guardian  to  Ward  as  "Wrongdoer,  &c. 
—  For  assault  and  battery,  a  ward,  like  all  other  persons,  is  en- 
titled to  damages.  But  where  his  guardian  is  the  offender,  there 
are  technical  difficulties  in  the  way  of  maintaining  a  suit.  Many 
authorities  allow  an  infant  to  sue  his  guardian  by  next  friend 
for  a  tort ;  though  a  spendthrift,  it  is  said,  cannot  do  so.  His 
remedy  may  be  found  in  getting  the  guardian  removed  for  mis- 
conduct and  securing  the  appointment  of  a  successor,  or  per- 
haps obtaining  his  discharge  from  guardianship  altogether.  An 
action  can  then  be  brought  by  himself  or  the  new  guardian,  as 
the  case  may  be.  The  guardian  may  in  all  cases  be  held  crimi- 
nally responsible  for  an  injury  committed.2 

A  guardian  may  be  restrained  by  injunction  from  committing 
waste.     So  he  is  responsible  for  damages  thus  occasioned;  and 


declared  insane,  81  Ind.  433.  Also,  as 
to  an  insane  person's  note,  taken  by 
one  without  notice  of  his  insanity, 
Shoulters  v.  Allen,  51  Mich.  529.  Cf. 
Edwards  v.  Davenport,  20  Fed.  R. 
756,  where  one  was  plainly  incapable. 
An  insane  person's  deed  of  real  estate 
is  treated  with  great  disfavor.  Rogers 
v.  Blackwell,  49  Mich.  192.  The  guar- 
dian may  maintain  a  bill  in  equity  for 
a  reconveyance.  Warfield  t\  Fisk,  136 
Mass.  219.  And  he  should  not  attempt 
to  ratify  a  conveyance,  or  convey  with- 
out judicial  authority.  134  Ind.  68. 
The  legal  disability  of  spendthrifts  (and 
semble  of  the  insane  under  local  statute) 
begins  when  the  guardian  is  appointed 
and  gives  bond.  Blake  v.  Potter,  51 
Conn.  78  ;  151  Mass.  354.  An  insane 
person  under  guardianship  usually  con- 
tinues liable  to  suit  and  the  personal 
service  of  summons.  Ingersoll  v.  Har- 
rison, 48  Mich.  234,  and  cases  cited. 
The  guardian  should  also  be  summoned 
and  defend.  87  Cal.  530.  In  a  suit 
against   his    guardian    on    a    contract 


made  by  the  ward  before  he  was  de- 
clared insane,  the  negligence  of  the 
guardian  in  defending  is  imputable  to 
the  ward.  Weems  o.  Weems,  73  Ala. 
462.  When  a  lunatic  is  supported  at  an 
asylum,  a  valid  personal  debt  is  created, 
and  proceedings  may  be  taken  to  mort- 
gage his  estate  to  secure  payment 
thereof.  Agricultural  Ins.  Co.  v.  Barn- 
ard, 96  N.  Y.  525. 

A  person  thus  under  guardianship 
may  with  the  guardian's  assent  estab- 
lish a  domicile  sufficient  for  probate  of 
bis  will.  Culver's  Appeal,  48  Conn. 
165.  And  the  ward  may  sometimes 
change  his  own  domicile,  if  mentally 
competent,  where  the  premature  death 
of  his  guardian  precludes  an  assent. 
Mowry  v.  Latham,  17  R.  I.  480. 

1  89  Ga.  646. 

2  Mason  v.  Mason,  19  Pick.  506;  76 
Mo.  215.  As  to  an  insane  ward,  see  89 
Ga.  656.  A  guardian  has  been  held 
liable  in  damages  for  corrupting  the 
virtue  of  his  ward.  Brittain  v.  Can- 
nadv,  96  Ind.  266. 

611 


§  382  THE   DOMESTIC   RELATIONS.  [PART   IV. 

it  has  been  held  that  a  judgment  against  sureties  on  the  guar- 
dian's bond  for  waste  committed  by  the  guardian  will  not  before 
satisfaction  bar  a  suit  by  the  ward  against  one  who  participated 
in  the  waste.1  The  ward  may  also  sue  for  use  and  occupation, 
although  he  has  a  general  guardian.2  Where  one  assumes  to  be 
guardian  or  agent  of  a  guardian,  and  enters  an  infant's  lands, 
the  infant  may  elect  to  treat  him  as  a  wrongdoer,  and  bring 
trespass,  or  charge  him  as  a  guardian.3  So  where  a  guardian 
wrongfully  holds  over.  But  the  ward  cannot  sue  his  guardian 
for  money  had  and  received.  His  proper  course,  at  least  in  this 
country,  is  to  institute  proceedings  for  the  latter's  removal,  with 
settlement  of  accounts,  and  then  to  sue  for  breach  of  the  official 
bond.4  For  a  tort  committed  upon  a  third  person  by  the  ward, 
the  guardian  is  not  usually  liable  ;  at  least  not  directly.5  And 
in  general  it  is  so  desirable  to  deprive  the  guardian  of  all  posses- 
sion and  control  of  his  ward's  estate,  when  the  ward  has  a  civil 
grievance  against  him,  that  the  latter's  suit  in  damages  ought 
to  be  at  least  accompanied  by  proceedings  for  removal  of  the 
guardian  from  his  trust. 

§  382.  Ward's  Action  or  Bill  for  Account ;  Limitations,  &c. 
—  Whenever  guardianship  has  been  terminated,  an  action  of 
account  lies  in  favor  of  the  ward.  And  this  action  is  brought 
by  the  new  guardian,  or  by  next  friend ;  or  by  the  ward  himself, 
if  the  period  of  his  legal  disability  has  expired.  While  his 
guardianship  continues,  chancery  permits  the  ward  by  next 
friend  to  file  his  bill  against  the  guardian  for  account.  All 
this  seems  to  apply  rather  to  chancery  than  probate  guardians ; 
since  direct  proceedings  for  account  in  the  court  which  issued 
letters  of  guardianship,  followed  by  removal  of  the  guardian, 
if  unfaithful,  and  suit  on  his  probate   bond,  afford  the  infant 


i  Powell  v.  Jones,  1   Ired.  Eq.  337.  8  Sherman  v.  Ballou,  8  Cow.  304  J 

Bee  Bank  of  Virginia  v.  Craig,  6  Leigh,  Blomfield  v.  Eyre,  8  Beav.  250. 

399  *  Brooks  v.   Brooks,   11    Cush.   18; 

2  Porter  v.   Bleiler,   17   Barb.   149.  Thorndike  r.  Hinckley,  155  Mass.  263. 

Bee  Benseman's  Appeal,  21  Penn.  St.  The  general  guardian  refusing  to  collect 

331  ;  Sawyer  v.  Knowles,  83  Me.  208.  the  purchase  price  of  laud,  action  may 

And  see  Chilton  v.  Cabiness,  H  Ala.  be  brought  in  the  ward's  behalf  by  a 

447;    103    End.  257   (statute).     Cf.  89  guardian  ad  litem.     52  Minn.  386. 

Ga.  656  ,  7fi  I  ia,  420.  6    Garrigus  v.  Ellis,  95  Ind.  598. 

612 


CHAP.  IX.]     RIGHTS  AND  LIABILITIES  OF  THE  WARD.         §  382 

under  such  guardianship  an  ample  and  expeditious  remedy. 
But  for  chancery  guardians,  purely  testamentary  guardians,  and 
quasi  guardians,  and  under  peculiar  circumstances,  the  more 
expensive  and  complicated  process  of  a  bill  in  equity  becomes 
the  necessary  resort.  And  this  in  England  is  still  the  usual 
course  of  procedure,  while  in  most  parts  of  the  United  States 
it  has  gradually  gone  out  of  use  or  has  been  superseded  in  great 
measure  altogether.1  But  in  some  cases  of  quasi  guardianship 
in  this  country,  —  the  probate  court  having  no  jurisdiction  at  all 
in  the  premises, — a  quasi  ward  on  reaching  full  age  has  been 
allowed  to  sue  in  assumpsit  for  money  in  the  quasi  guardian's 
hands ;  for  here,  as  it  would  appear,  the  old  action  of  account 
was  always  proper.2 

The  ward's  right  to  call  his  guardian  to  account  may  be  barred 
by  limitation,  computed  from  the  time  he  becomes  competent 
to  act.  In  Pennsylvania  it  is  said  that  the  same  principle 
applies  as  in  other  legal  proceedings  ;  and  eighteen  years'  delay 
after  the  ward  attains  majority  has  been  held  fatal  to  a  suit.3 
But  in  Illinois  the  rule  is  differently  stated,  and  the  guardian's 
liability  to  account  is  there  considered  to  last  as  long  as  the  bond 
continues  in  force ;  the  citation  to  account  before  the  probate 
court  being  merely  a  means  to  ascertain  delinquency  as  the 
foundation  of  a  suit,  and  not  of  itself  a  suit  at  law  or  in  equity.4 
The  former  may  be  regarded  as  the  true  doctrine  for  chancery 
guardianship  or  proceedings  in  the  nature  of  a  bill  for  account ;  the 

1  Monell  v.  Mouell,  5  Johns.  Ch.  283 ;  be  made  a  party.     Black  v.  Kaiser,  91 

Linton  v.  Walker,  8  Fla.   144;  Swan  v.  Ky.  422 ;  92  Teun.  459.     And  equity  in 

Dent,  2  Md.  Ch.  Ill:  Lemon  v.  Hans-  peculiar  and  complicated  cases,  where 

barger,  6  Gratt.  301  ;  Manning  v.  Man-  the  probate  jurisdiction  appears  inade- 

ning,  61  Ga.   137  ;  Macphers.  Inf.  259,  quate,  will   apply  its  remedies  on  the 

348 ;    Fanning    v.    Chadwick,   3    Pick,  adult   ward's    application.     Camp    Be, 

424;    Jones  v.  Beverly,   45    Ala.    161.  126  N.  Y.  377.     As  where  the  guardian 

The    sureties    under    a    void    probate  in  possession  has  himself  a  life  tenant's 

appointment  may  thus  be  held  respou-  interest  in  the  fund, 
sible  together  with  the  principal.     Cor-  2  Pickering   v.    De   Rochemont,    45 

bitt  v.    Carroll,  50   Ala.  315.      As   to  N.  H.  67  ;  Field  v.  Torrey,  7  Vt.  372. 
appointing  a  receiver  on  the  ward's  bill  3  Bones'  Appeal,  27  Penn.  St.  492. 

for  account,  see  Sage  v.  Hammonds,  27  See  Magruder  v.  Goodwin,  P.  &  H.  561  ; 

Gratt.    651.      To    the     ward's     action  Adams  v.  Riviere,  59  Ga.  793. 
against  his  guardian  to  compel  a  settle-  *  Gilbert  v.  Guptill,  34  111.  112.    And 

ment,    the    surety  on    the    guardian's  see  last  chapter, 
bond  where  such  bond  was  given  should 

613 


§  382  a  THE   DOMESTIC   RELATIONS.  [PART  IV. 

latter  for  probate  guardianship.  The  guardian's  administrator  in 
either  case,  if  the  guardian  dies,  should  close  up  the  trust  accounts, 
if  not  already  settled,  before  he  makes  distribution;  since  he 
may  otherwise  remain  liable  for  many  years.1  But  in  most 
States  the  general  subject  of  limitation  in  all  trusts  is  expressly 
regulated  by  statute.2 

Short  delays  by  the  ward,  after  coming  of  age,  to  require 
accounts  and  institute  a  suit  on  the  bond,  are  not  to  be  con- 
strued to  the  prejudice  of  his  rights  against  either  guardian  or 
sureties.3  But  one  who  has  been  under  guardianship  is  charge- 
able with  constructive  notice  of  the  probate  papers  on  file,  and 
proceedings  in  the  court  relative  thereto,  and  should  prosecute 
his  rights  seasonably.4  And  special  circumstances,  such  as  a 
final  settlement  with  the  ward  in  connection  with  lapse  of  time, 
make  the  barrier  stronger.5 

§  382  a.  The  Same  Subject.  —  In  considering  a  ward's  ac- 
tion at  law  on  reaching  full  age,  State  practice  concedes  often  a 
choice  of  remedies  to  the  ward  even  where  probate  intervention 
is  proper  for  compelling  an  account  in  court.  Thus  the  guar- 
dian's failure  to  settle  and  pay  over  within  a  reasonable  time 
after  the  ward's  disability  ends,  has  been  considered  of  itself  a 
breach  of  the  condition  of  the  probate  bond,  entitling  the  ward  to 
sue  at  once  his  late  guardian.6  But  if  the  ward,  as  he  should 
move  prudently  do,  goes  into  court  and  has  a  balance  found  by  its 
adjudication  against   the  guardian,  he  may  treat  the  failure  of 


1  Musser  v.  Oliver,  21  Penn.  St.  362.  compel  the  guardian  to  settle  his  ac- 
See  Felton  v.  Long,  8  Ired.  Eq.  224;  count,  or  obtain  a  judgment  on  the 
Mitchell  v.  Williams,  27  Mo.  399 ;  Pear-  bond,  before  proving  a  claim  against 
son  /•.  McMillan,  37  Miss.  588;  128  Ind.  the  estate  of  his  insolvent  guardian. 
L03.  Equitable  claim  of  ward  allowed  144  Mass.  195.  No  action  by  the  ward 
against  deceased  guardian's  estate  in  lies  at  law  for  moneys  in  the  guardian's 
93  Mich   263.  hands  until  his  accounts  have  been  set- 

2  No  statute  of  limitations  begins  tied  in  court.  62  Wis.  248.  And  see 
to  run  before  the  ward's  legal  disabil-  65  Cal.  429.  But  where  settlement  is 
ity  actually  ends.  Minter  v.  Clark,  92  delayed,  suit  lies  on  the  guardian's 
Tenn.  159.  And  peculiar  circumstances  bond  in  a  fit  case  before  his  final  settle* 
will  require  equity  to  extend  the  period,  ment.     82  Mo.  57. 

126  N.  V.  .{77.  5  Railsback    v.   Williamson,  88   111. 

•■  Pfeiffer  v.  Knapp,  17  Fla.  144.  494.     See  §  389. 

*  Robert  v.   Morrin,  27    Mich.  306.         «  People  v.  Seclye,  146  111.  189. 
The  ward  reaching  age  should  either 

6]  I 


CHAP.  IX.]    EIGHTS    AND    LIABILITIES    OF   THE    WARD.       §  384 

the  guardian  to  pay  the  amount  as  a  new  breach  of  the  con- 
dition of  the  bond,  dating  from  the  time  of  default  in  performing 
the  court's  order.1  And  the  guardian's  failure  thus  to  pay  over 
in  accordance  with  the  court's  decree  creates  such  a  debt  in  the 
ward's  favor  that  the  remedy  of  the  ward  is  not  exclusively  con- 
fined to  a  suit  on  the  guardianship  bond,  but  he  may  instead  sue 
in  his  own  name,  at  his  own  choice.2  In  short,  the  general  theory 
is  that  on  the  infant  ward's  attainment  of  majority  the  guardian- 
ship over  him  ipso  facto  terminates  ;  only  that  for  convenient 
purposes  beneficial  to  him  a  judicial  supervision  and  control  is 
exercised  for  bringing  about  a  business-like  adjustment  of  the 
late  concerns  of  his  wardship. 

§  383.  Ward's  Right  to  recover  Embezzled  Property,  &c.  — 
Courts  of  chancery  will  always  aid  the  ward  in  recovering  prop- 
erty embezzled,  concealed,  or  conveyed  away  in  fraud  of  his 
rights.  The  proper  mode  of  procedure  is  by  bill  in  equity. 
And  while  a  probate  guardian  suspected  of  fraud  should  be  cited 
to  account,  it  has  been  held  that,  his  estate  being  insolvent  and 
his  sureties  irresponsible,  it  is  not  necessary  for  the  ward  to  sue 
them  before  he  can  file  a  bill  to  recover  such  property  as  he  can 
trace.3  A  summary  process  in  the  nature  of  an  inquisition  is 
provided  by  statute  in  some  States,  for  ascertaining  the  where- 
abouts of  stolen  and  missing  property  belonging  to  wards,  by 
means  of  which  all  suspected  persons,  including  the  guardian 
himself,  can  be  summoned  before  the  probate  court  to  answer 
lawful  inquiries  under  oath.4  And  a  writ  of  ne  exeat  is  some- 
times issued  to  protect  a  minor's  interest,  where  the  latter's  prop- 
erty has  been  squandered  or  embezzled,  and  the  guardian  is 
about  to  abscond.5 

§  384.  Fraudulent  Transactions  set  aside  on  Ward's  behalf.  — 
Fraudulent  transactions  cannot  stand  as  against  the  ward.  And 
in  cases  of  this  sort,  equity  will  go  to  the  substance  rather  than 
the  form,  in  order  to  ascertain  the  real  motives  of  one  who  pro- 

1  People  v.  Seelye,  146  111.  189.  3  Hill  v.  Mclntire,  39  N.  H.  410. 

2  Cobb  v.  Kempton,  154  Mass.  266.  *  Sherman  v.  Brewer,  11  Gray,  210. 
An  analogous  rule  prevails  in  the  ad-  5  People  v.  Barton,  16  Col.  75. 
ministration  of  estates.    And  see  125 

Ind.  519. 

615 


§  384  THE   DOMESTIC   RELATIONS.  [PART   IV. 

fesses  to  turn  over  trust  property  to  third  parties,  and  justice 
will  be  done  if  possible.  Where  a  guardian,  for  instance,  trans- 
fers a  note  with  words  importing  trust  to  his  private  creditors  as 
security  for  his  own  debt,  the  ward  can  follow  it  into  their  hands, 
or  against  other  parties,  and  stop  payment,  whether  sufficient  con- 
sideration was  paid  by  the  holder  or  not.1  But  in  all  cases  of 
this  sort,  third  parties  should  have  some  notice,  actual  or  con- 
structive, of  the  existence  of  a  trust ;  otherwise  they  cannot  be 
made  to  suffer  loss  further  than  the  usual  rules  of  stolen  prop- 
erty apply.2  Eights  of  wards  to  real  estate  are  frequently  pro- 
tected on  these  principles.  Thus,  where  a  mother  interested  in 
certain  lands  with  her  children  obtained  partition  after  being 
appointed  their  guardian,  bought  in  the  premises,  and,  without- 
paying  the  full  purchase-money,  gave  a  mortgage,  taking  an 
assignment  to  herself  as  guardian,  the  claim  of  the  mortgagee 
with  notice  was  postponed  to  the  children's  share.3  So,  where 
a  guardian  who  held  a  mortgage  in  his  own  right  agreed  with 
the  mortgagor  to  substitute  the  ward's  money  for  his  own,  letting 
the  securities  remain  as  before,  this  was  held  to  be  an  equitable 
investment  of  the  ward's  money,  and  good  against  any  subse- 
quent disposition  which  the  guardian  might  make,  while  in  fail- 
ing circumstances,  to  secure  his  own  creditor.4  The  guardian's 
collusion  with  third  parties  to  defeat  any  equity  of  the  ward  in 
land  cannot  prevail  against  the  ward  who  seeks  in  season  to  set 
the  conveyance  aside.5  And  in  any  strong  case  of  an  illegal 
sale  of  the  ward's  property  contrary  to  statute,  and  the  conver- 
sion of  the  proceeds  to  the  guardian's  own  use,  a  ward  has  not 
only  his  remedy  upon  the  guardian's  bond,  but  can  repudiate 
the  sale  and  recover  his  property.6 

But  fraud  is  a  question  of  evidence.  And  the  payment  of  a 
debt  to  a  guardian  before  it  is  due  is  not  sufficient  in  itself  to 
establish  an  unfair  purpose.     Hence  it  was  decided  in  a  North 

1  Lockhart  v.  Phillips,  1  Ired.  Eq.  notice  of  the  ward's  rights.  And  see 
842;  Lemley  v.  Atwood,  65  N.  C.  46.        Gannaway    v.  Tapley,    1    Cold.    572; 

2  Hill  r.  Johnston,  :t  Ired.  Ei|.  432.        Itohinson  v.  Rohinson,  22  Iowa,  427. 

;:   Messervey   "■    Barelli,   2    Hill  Ch.  6  Beazley   v.    Harris,    1    Bush,    533. 

507.  See  McFarland  v.  Coulee,  44  111.  455. 

1  Evertson  v.  Evertsou,  5  Paige,  644.         ';  State  t\  Murray,  24  Md.  310.    See 

In   this  case  the  creditor  had   not  even  infra,  §  386. 

610 


CHAP.  IX.]    RIGHTS  AND  LIABILITIES  OF  THE  WARD  §  385 

Carolina  case,  that  where  one  owing  a  bond  to  a  guardian  in  fail- 
ing circumstances,  the  bond  being  in  behalf  of  the  ward,  and  not 
yet  due,  held  also  a  note  against  the  guardian  himself,  which  he 
gave  to  an  attorney  to  collect,  with  explicit  instructions  not  to 
make  an  exchange,  but  to  collect  the  note  given  him,  and  with 
the  proceeds  to  take  up  the  bond  due  the  guardian,  and  such 
attorney  received  a  bank  check  from  the  guardian,  and  believing 
the  money  to  be  in  bank,  and  that  the  check  was  as  good  as 
money,  returned  the  note  to  the  guardian,  and  took  up  the  bond 
in  his  hands,  these  acts  having  been  performed  in  good  faith, 
the  ward  could  not  pursue  his  former  debtor.1 

§  38 5.  Ward's  General  Right  to  repudiate  Guardian's  Trans- 
actions ;  his  Right  of  Election.  —  We  have  seen  that  the  trans- 
actions of  a  guardian  on  behalf  of  his  infant  ward  are  valid,  if 
within  the  scope  of  his  general  powers,  or  authorized  by  the 
courts  of  equity;  sustainable,  though  neither  within  the  scope 
of  his  powers,  nor  previously  authorized,  if  the  court  afterwards 
deems  them  prudent  or  beneficial  to  the  ward ;  in  other  cases, 
subject  to  the  ward's  own  disaffirmance  on  reaching  majority. 
Herein  consists  the  infant's  right  of  election.  Few  acts  of  the 
guardian  can  be  pronounced  valid,  except  in  the  sense  that  they 
are  authorized,  either  generally  or  specially,  by  the  court  which 
exercises  supervision;  and  few  of  his  transactions  can  be  so 
utterly  without  authority  as  to  be  absolutely  void  per  se.  The 
general  rule  of  election  recognizes,  then,  two  principles  :  first,  the 
privilege  of  the  infant  ward,  on  attaining  full  age.  to  avoid  his 
guardian's  doubtful  transaction ;  second,  the  right  of  courts  of 
equity  to  control  this  privilege  by  interposing  to  pronounce  the 
transaction  good.  The  whole  doctrine,  therefore,  seems  in  strict 
accordance  with  that  more  general  rule,  that  the  accounts  of  the 
guardian  are  open  to  the  inspection  of  the  ward  at  majority,  and 
may  be  disputed  down  to  the  smallest  item.  And  where,  as  in 
the  case  of  probate  guardians,  settlements  out  of  court  do  not 
dispense  with  final  returns  for  preservation  and  public  record,  the 
tendency  of  the  decisions  must  be  in  favor  of  bringing  the  question 

1  Wynne  v.  Benbury,  4  Jones  Eq.  v.  Bradley,  5  Tred.  Eq.  136 ;  Dawson  ». 
395.  And  see,  as  to  fraud  generally,  Massey,  1  Ball  &  B.  329  ;  Henry  ix 
Story,  Eq.  Juris.  §§317-320;  Harrison     Pennington,  11   B.  Monr.  55. 

617 


§  385  THE   DOMESTIC    DELATIONS.  [PART   IV. 

of  affirmance  or  disaffirmance  of  the  guardian's  transaction  before 
the  court,  instead  of  leaving  it  to  acts  of  the  late  ward  in  pais. 
These  principles  suffice  for  general  application  to  compromises, 
submissions  to  arbitration,  investments  and  reinvestments  of  per- 
sonal property,  and  similar  transactions,  undertaken  by  the  guar- 
dian on  the  strength  of  a  previous  order  of  court,  or  at  the  risk  of 
its  subsequent  approval.1  Yet  statutes  sometimes  interpose  to 
render  such  transactions  absolutely  perfect  on  permission  of  the 
court.  And  where  the  guardian's  position  in  a  transaction  is 
that  of  trustee  of  an  express  trust,  the  transaction  will  conclude 
the  ward.2  Infants,  as  we  shall  see  elsewhere,  are  incapable  of 
assenting  during  infancy  to  anything  prejudicial  to  their  property 
interests  ;  and  any  consent  so  procured,  if  not  actually  void,  can 
at  all  events  be  retracted  after  the  infant  reaches  majority,  except 
so  far  as  the  court  rightfully  controls  his  choice.3 

But  as  to  transactions  which  involve  the  purchase  or  sale  of 
real  estate  on  the  infant  ward's  behalf,  the  rule  is  very  strict, 
as  we  have  already  seen.  The  ward  is  not  bound  even  by  his 
guardian's  exchange  of  his  lands  by  way  of  equivalent.4  A  de- 
fective sale  of  real  estate  under  the  statute  may  in  some  States 
be  set  aside  on  a  bill  in  equity  filed  by  the  infant  against  the 
guardian  and  the  purchasers.5  And  where  the  guardian  con- 
tracts to  buy  real  estate  for  the  ward's  benefit,  the  ward,  on 
reaching  majority,  may  either  complete  the  contract  or  reject  it, 
and  look  to  the  guardian  for  payment.6  But  he  cannot,  in 
absence  of  fraud,  compel  the  vendor  to  refund  the  money  paid 
down  as  a  bonus.7  Nor  can  he,  having  once  renounced,  seek  to 
be  relieved  against  such  renunciation.8  The  right  of  election 
goes  to  the  ward's  personal  representatives  if  he  dies  under  age.9 

1   Barnaby  v.  Barnaby,  1   Pick.  221.  Brooks,    83    Conn.  347;    Summers    v. 

See  supra,  c».  6,  8.  Howard,  38  Ark.  490.     And  see  Tatum 

-   Loehr  v.  Colborn,  92  Ind.  24.  v.  Holliday,  59  Mo.  422. 

8  Pari  V.  cs.  2,  3.  6  Loyd  v.  Malone,  23  111.  43;  Hopk. 

4  Morgan  v.  Johnson,  68  111.  100.  337  ;  88  N.  C.  138. 

8  2  l\.  nt,  Com.  2".o;  Eckford  v.  De  '  larger  w.Jones,  16  How.  30. 

Kay,  8  Paige,  «o  ;  Westbrook  v.  Com-  8  Floyd  v.  Johnston,  2  I. in.  100. 

stock,    Walker    Ch.    314.     See    supra,  '•'  Singleton  v.  Love,  i   Head.  357; 

c  7.     A-  to  adjustment  <>f  rents  and  Dean  v.  Feeley,  66  <!a.  273.     Whether 

improvements  in  such  cases,  Bee  Ander-  the  right  <>f  election  applies  where  the 

son  v.  I- a  ton,  3  Bnsh,  *7  ;  Ilolhrook  v.  guardian  took  laud  iu  discharge  of  a 

G18 


CHAP.  IX.]    RIGHTS  AND  LIABILITIES  OF  THE  WARD.         §  380 

And  it  would  appear  to  be  a  general  principle  that  where  the 
ward,  after  arriving  of  age,  with  full  knowledge  of  all  the  facts 
and  in  the  absence  of  fraud,  receives  and  retains  the  purchase- 
money  arising  from  the  guardian's  sale  of  his  land,  he  cannot 
question  the  validity  of  the  sale  afterwards.1  In  other  words,  the 
ward  may  choose  whether  to  repudiate  the  sale  and  recover  the 
land,  or  ratify  it  and  claim  the  purchase-money.  Without  some 
proper  judicial  sanction,  at  least,  a  guardian  cannot  divest  his 
ward  of  rights  in  real  estate  against  the  ward's  power  to  assent 
or  dissent,  when  sui  juris? 

A  resulting  trust  to  the  ward  may  be  established,  on  his  elec- 
tion, in  lands  which  the  guardian  has  taken  in  his  own  or 
another's  name,  but  upon  consideration  out  of  the  ward's  estate.3 
And  a  guardian  may  for  convenience  have  taken  real  estate  or 
even  mortgage  notes  or  other  securities  in  his  own  name,  and 
yet  by  his  dealings  show  a  plain  intent  to  hold  it  in  trust  for 
his  ward,  subject  to  expenses  incurred  in  its  management 
and  accounting  for  its  income  and  proceeds,  and  giving  the 
ward  the  right  to  claim  title  by  proceedings  in  equity  or 
otherwise.4 

§  380.  Same  Subject  ;  Resulting  Trusts  ;  Guardian's  Misuse  of 
Funds  ;  Purchase  of  Ward's  Property,  &c.  — All  advantageous 
bargains  which  a  guardian  makes  with  the  ward's  funds  are 
also  considered  subject  to  the  ward's  election,  either  to  repudiate 
or  to  uphold  the  contract  and  take  the  profits.  This  applies, 
in  general,  to  improper  acts ;  as  where  the  guardian  speculates 
with  the  trust  funds,  or  invests  them  in  his  own  business,  or,  in 
a  word,  converts  them  to  his  own  use.  The  ward  may  either 
take  the  investment  as  he  finds  it,  with  all  the  profits,  or  de- 
mand the  original  fund,  with  interest ;  though  he  cannot  avoid 

predecessor's   indebtedness,   see    Beam  2  Rainey  v.   Chambers,  56  Tex.  17. 

v.  Froneberger,  75  N.  C.  540 ;  Clayton  And  see,  as  to  setting  aside  a  void  de- 

v.  McKinnon,  54  Tex.  206.  cree  of  sale,  100  111.  356 ;  79  Ind.  188. 

1  Deford  v.  Mercer,  24  Iowa,  118;  3  Hamnett's  Appeal,  72  Penn.  St. 
Parmele  v.  McGinty,  52  Miss.  476;  337;  Pfeiffer  v.  Ivnapp,  17  Fla.  144; 
Shorter  v.  Frazer,  64  Ala.  74 ;  O'Con-  Summers  v.  Howard,  33  Ark.  490 ; 
ner  v.  Carver,  12  Heisk.  436.  See  post,  Sterling  v.  Arnold,  54  G a.  690;  White- 
Part  V.  c.  5,  as  to  disaffirmance  by  head  v.  Jones,  56  Ala.  152;  Patterson 
infant  without  restitution;  Bevis  v.  v.  Booth,  103  Mo.  422. 
Heflin,  63  Ind.  129.  4  Fogler  v.  Buck,  66  Me.  205. 

619 


§  386  THE  DOMESTIC   RELATIONS.  [PART   IV. 

a  transaction  in  part  and  ratify  in  part.1  And  where  the  ward 
has  declined  to  elect  whether  lie  will  take  interest  or  the  prof- 
its derived  by  his  guardian  from  an  investment  which  he  was 
not  authorized  to  make  (as  in  the  guardian's  business)  the  court 
may  make  the  election  for  the  ward.2  And  so  as  to  electing  to 
take  land  which  has  enhanced  in  value  since  the  guardian  took 
title  to  himself.3  For  it  is  right  that  the  ward  should  enjoy  all 
the  advantages  which  have  accrued  from  the  use  of  his  own 
money  ;  and  it  is  also  right  that  the  guardian  should  not  derive 
gain  from  the  ward's  loss.  The  old  rule  of  chancery  in  this 
respect  has  been  gradually  relaxed  ;  so  that  many  acts  of  a  trus- 
tee, which  might  once  have  been  considered  fraudulent  and  void, 
are  now  deemed  voidable  only.4 

Thus  it  is  that  the  rule  may  now  be  considered  well  settled, 
that  t'ne  guardian  who  buys  at  the  sale  of  his  ward's  lands  or 
other  property  is  secure  in  his  purchase,  and  retains  all  the 
benefits  arising  therefrom,  unless  the  ward  chooses  to  set  it 
aside  and  claims  to  be  reinstated  in  his  own  possession.  This 
rule  is  laid  down,  however,  with  great  caution  in  the  courts;5 
and  it  is  frequently  said  that  the  transaction  is  treated  all  the 
same,  whether  the  guardian  bought  the  property  outright  or 
there  was  a  colorable  purchase  by  means  of  third  parties ;  more- 
over, that  such  sales,  in  order  to  stand  at  all,  must  have  been 
conducted  fairly  and  in  good  faith.6  Where  the  circumstances 
show  fraud  and  collusion,  courts  of  equity  hesitate  little  in 
setting    the   transaction   aside.7     And  a  material  question   for 

1  2    Kent,    Com.    230;    Docker    v.  *  See  Hill    on    Trustees,   159,  536; 

Somes,  2   M.  &   K.  664;    Kyle  v.  Bar-  Cassedy  v.  Casey,  58  Iowa,  326. 

nett,  17  Ala.  306  :  Singleton  r.  Love,  1  5  See    61    Miss.  766,  as    to  ;i   joint 

Head,  35 7  ;   White   v.  Parker,  8  Barb,  purchase;   also  47  Minn.  118,  where  a 

48;    Jones  v.   Beverly,  45    Ala.    161;  purchase   by  the  guardian    of    minor 

■">•"/"'".  §§    352-354.      A     female    ward  heirs  at  a  regular  administrator's  sale 

living    with    her  lather   on    land    mort-  was  upheld. 

>>..    him  to    her   guardian    does  °  2  Kent,  Com.  230;  Scott  v.  Free- 

"■'i    aecessarilj    ratify   the    guardian's  land,  7  S.  &  M.  409  ;  Doe  v.  Hassell,  68 

loan  on  the  mortgage.       117    111.    152.  N.  C.  21.3  ;  Elrod  ?-.  Lancaster,  2  Head, 

After  repudiation   of   the   transaction,  571  ;  Patton  r.  Thompson,  2  Jones  Eq. 

cannol  ask  to  have  the  deed  285 ;  Chorpenning's  Appeal,  .'52  Penn. 

reformed.     53  Mich.  329.  St.  815;  16  Lea,  732.    And  see  supra, 

juin'fl  Appeal,  103  Penn,  St.  139.  cs.  6,  7. 

"•  See  Tealie  v.  Hoyte,  8  Term.  Ch.  T  Bayward   v.   Ellis,  13  Pick.   27? 

651.  And   see    Winter   v.   Truax,   87     Mich 

G20 


CHAP.  IX.]     EIGHTS  AND  LIABILITIES  OF  THE  WARD.         §  386 

consideration  in  such  sales  is  whether  a  fair  price  was  paid  for 
the  property.  Parties  affected  with  notice  of  the  circumstances 
cannot  complain  if  their  title  to  real  estate  becomes  thereby 
impaired ;  but  it  is  hard  that  purchasers  without  notice  should 
suffer.  On  this  latter  principle,  and  for  the  security  of  title, 
rests  a  decision  in  Massachusetts,  to  the  effect  that  the  guar- 
dian's purchase  of  his  ward's  real  estate  is  voidable  by  the  ward 
only  as  against  the  guardian,  or  a  purchaser  claiming  under  him 
with  knowledge  of  the  circumstances  ;  and  not  as  against  a  sub- 
secpuent  grantee  or  mortgagee  without  notice.1  In  general,  if 
with  the  ward's  funds  the  guardian  purchases  land  and  takes 
title  to  himself,  a  subsecpaent  purchaser's  rights  should  depend 
upon  good  faith  and  the  question  whether  he  had  due  notice  of 
the  ward's  title.2  The  fact  that  on  final  settlement  a  decree  is 
rendered  against  the  guardian  and  his  sureties  for  such  funds, 
does  not  estop  the  ward  from  enforcing  his  resulting  trust  in 
the  land.3  And  a  guardian's  sale  of  his  own  property  to  the 
ward  may  be  disavowed  by  the  latter  on  coming  of  age.4 

If  the  ward  does  not  ratify  an  unauthorized  investment, 
neither  purity  of  intention  nor  diligence  and  good  faith  in 
endeavoring  to  prevent  loss  thereby  will  absolve  the  guardian 
from  liability  therefor.5  But,  in  general,  the  guardian  may  dis- 
charge himself  by  turning  over  what  securities  and  property  he 
has  taken  in  good  faith  and  in  the  rightful  exercise  of  his  trust, 
if  it  remains  as  the  result  of  prudent  management  of  the  estate 
on  his  part,  whether  valuable  or  worthless  at  the  time  of  final 


324,  where  a  guardian   sold  and   pro-  upon  guard.     Morrison  v.  Kinstra,  55 

cured   an    immediate   reconveyance   to  Miss.  71.     And  see  Armitage  ».  Know- 

himself  by  the  purchaser  at  the   same  den,  41    Md.   119;  Bevis  v.    Heflin,  63 

price.  Md.    i29  ;    White  v.  Izelin,  26    .Minn. 

1  Wyman  v.  Hooper,  2  Gray,  141.  487;  Webster  »;.  Bebinger,  70  Ind.  9. 
As  to  the  English  doctrine,  see  Morse  For  a  case  where  A.  bought  land,  his 
v.  Royal,  12  Ves.  372;  Cary  v.  Cary,  2  grantor  retaining  a  lien  for  the  pur- 
Sch.  &  Lef.  173;  Naylor  v.  Winch,  1  chase-money,  and  then  used  the  ward's 
Sim.  &  Stu.  567.  Here  that  constructive  money  to  pay  for  the  land,  see  83  Ind. 
notice  which  the  public  records  furnish  266. 

is  perhaps  to  be  deemed  unavailing  on  8  Robinson  v.  Pebworth,  71  Ala.  240. 

the  ward's  behalf.    And  see  55  Mich.  4  Hendee  v.  Cleaveland,  54  Vt.  142; 

482.  Grandstrand  Re,  49  Minn.  438. 

2  Title  running  to  the  guardian  as  6  May  v.  Duke,  61  Ala.  53. 
"  trustee  "  should  put  such  third  party 

621 


§  386  THE   DOMESTIC    RELATIONS.  [PART   IV. 

settlement ;  his  liability  extending  to  property  of  the  ward 
which  has  come  to  his  actual  or  potential  control ;  and  securi- 
ties being  turned  over  at  their  just  valuation,  like  specific  cor- 
poreal chattels.1  But  a  settlement  with  the  ward  by  turning 
over  what  the  guardian  knows  to  be  bad  securities  improperly 
taken  should  not  be  countenanced.2 

A  guardian  ought  not  to  hold,  as  property  of  his  ward,  notes 
or  securities  which  on  their  face  evidence  a  debt  due  to  the  guar- 
dian or  his  predecessor  in  his  individual  right,  unidentified  as 
the  ward's  property.3  Nor  has  a  guardian  any  right  to  deal 
with  his  beneficiary's  property  for  his  own  gain ;  and  whatever 
land  a  guardian  purchases  in  his  own  name  with  the  ward's 
funds  belongs  in  equity  to  the  ward  and  is  subject  to  a  resulting 
trust  accordingly.4  In  equity  the  ward  may  follow  not  only 
money  belonging  to  him  which  has  been  invested  in  land  by 
his  guardian,  but  any  specific  chattel  purchased  with  his  funds, 
into  which  his  funds  can  be  clearly  traced,  even  though  the 
guardian  took  title  to  himself.  If,  however,  the  ward  elects  to 
take  the  money,  such  property  vests  absolutely  in  the  guardian, 
and  those  standing  upon  the  guardian's  title.5  And  unless  the 
fund  can  be  traced  into  some  specific  thing  or  be  clearly  iden- 
tified, the  ward,  of  course,  cannot  assert  his  right  therein  ; 6  and 
the  usual  rules  apply  as  to  bona  fide  third  parties  who  may  have 
meantime  acquired  title.  We  may  finally  observe  that  a  ward 
who  repudiates  a  transaction  to  the  disadvantage  of  some  bona 


1  Supra,  c.  6  ;  State  v.  Foy,  71  N.  C.  self  in  his  own  name,  is  not  in  law 
527;  Goodwin  v.  Goodson,  6  [red.  Eq.  a  conversion,  though  tending  perhaps 
238.  Guardian  held  liable  for  careless-  to  show  a  conversion.  Richardson  v. 
ness  in  procuring  the  issue  of  an  er-  State,  55  Ind.  381,  doubted  in  Stater. 
piiienns  decree  of  distribution  to  the  Greensdale,  supra.  See  §  385. 
ward's  injury.    Fierce  v.  Prescott,  128         4  §  385. 

Mass.  140.  6  Chanslor    v.    Chanslor,    11    Rush, 

2  Burwell  v.  Rurwell,  78  Va.  574.  663.  As  to  recovering  the  thing  from 
It  is  a  fraud  upon  the  ward  for  a  third  parties  after  an  unproductive  suit 
guardian  to  turn  over  to  his  successor  on  the  guardian's  bond,  see  Rranch  v. 
the  lattcr's  note  to  him  instead  of  l)e  Rose,  55  Ga.  21.  For  the  guardian 
funds  of  the  estate.  State  v.  Leslie,  to  take  a  surrender  of  his  own  note  in 
83  Mo.  60.  payment  of   the   price    of    his    ward's 

-dale,   106  Ind.  364.  prop*  rtv,  is  a  breach  of  duty.     82  Ind. 

For  a  guardian  to  take  notes  for  money  388. 
belonging  to  his  ward,  payable  to  him-         6  Vasou  v.  Rell,  53  Ga.  416- 

022 


CHAP.  IX.]     RIGHTS  AND  LIABILITIES  OF  THE  WARD.         §  388 

fide  third  person,  ought  in  justice  to  offer  to  restore  the  consid- 
eration as  far  as  he  is  able.1 

§  387.  Transactions  between  Guardian  and  Ward  ;  Undue 
Influence.  — This  brings  us  to  the  general  subject  of  transac- 
tions between  the  guardian  and  ward,  from  which  the  former 
derives  a  benefit.  Here,  as  in  the  guardian's  purchases,  equity 
is  not  disposed  to  favor  him.  "  In  this  class  of  cases,"  says 
Judge  Story,  "  there  is  often  to  be  found  some  intermixture  of 
deceit,  imposition,  overreaching,  unconscionable  advantage,  or 
other  mark  of  direct  and  positive  fraud."  2  Equity  will  relieve 
against  such  transactions,  on  the  general  principle  of  utility, 
although  there  may  not  have  been  actual  imposition  ;  but  if  an 
improper  advantage  has  been  taken,  the  ground  for  relief  is  still 
stronger.  And  it  is  noticeable  that  a  more  stringent  rule  has 
been  laid  down  as  to  guardians  than  applies  to  transactions 
between  parent  and  child  ;  for  a  guardian  is  not  supposed  to  be 
influenced  by  that  affection  for  his  ward  which  parents  enter- 
tain towards  their  own  offspring,  and  therefore  has  no  such 
powerful  check  upon  his  selfish  feelings.3 

§  388.  Same  Subject;  Situation  of  Parties  at  Final  Settlement 
of  Accounts.  —  Such  questions  generally  arise  at  and  about  the 
time  the  ward  attains  majority,  and  pending  the  final  settlement 
of  the  guardian's  accounts.  The  English  rule  is  very  strict, 
and  courts  are  extremely  watchful  to  prevent  all  undue  advan- 
tage at  this  critical  period.  Therefore  gifts  and  conveyances 
of  the  ward's  property,  in  consideration  of  the  guardian's  ser- 
vices, on  a  final  adjustment,  may  be  set  aside  afterward  in  equity, 
even  after  the  ward's  death.  "  "Where  the  connection  is  not  dis- 
solved, the  accounts  not  settled,  everything  remaining  pressing 

1  See  Myriek  v.  Jacks,  39  Ark.  293 ;  he  purchased  and  received  under  the 
Part  V.  c.  5.  contract ;    but    where,   after    majority 

2  Story,  Eq.  Juris.  §  307.  and  without  fraud  or  undue  influence, 
8  Pierce    v.  Waring,    cited    1    Ves.     such  ward  executes  to  his  guardian  a 

380;  Hylton    v.    Hylton,    2   Ves.    547;  receipt  for   the  value  of   the  property 

Hatch  v.  Hatch,  9  Yes.  296.     See   Hill  received    by  him,  such  act  is  a  valid 

on  Trustees,    157-160.     A    ward    may,  ratification    of    the   contract;  and  this 

after   he  becomes  of   age,  disaffirm   a  even  though  the    ward    was    ignorant 

contract  which  he  made  while  an  infant  that  he  had  a  right  to  disaffirm.     Clark 

with  his  guardian,  without  restoring  or  v.  Van  Court,  100  Ind.  113.  See  §  404. 
offering  to  restore  the  property  which 

623 


§  388  THE   DOMESTIC    RELATIONS.  [PART  IV. 

upon  the  mind  of  the  party  under  the  care  of  the  guardian/' 
observes  Lord  Eldon,  "it  is  almost  impossible  that  the  trans- 
action should  staud."  1  Nor  are  the  circumstances  under  which 
the  gift  was  made  considered  of  much  account;  for  the  guar- 
dian's superior  age  and  knowledge  of  the  world,  and  the  fact 
that  he  holds  the  property  in  his  hands,  place  him  at  a  decided 
advantage,  whether  he  chooses  to  adopt  a  threatening  tone  or 
to  impose  upon  the  ward's  mind  by  excessive  kindness.  These 
general  principles  apply,  though  not  always  in  the  same  degree, 
to  all  others  sustaining  fiduciary  relations  ;  including  receivers 
and  agents  who  manage  the  property  of  a  cestui  que  trust.  And 
unfair  advantages  of  every  sort,  which  the  guardian  aims  to 
secure  on  a  final  adjustment  of  his  accounts,  —  whether  it  be 
in  the  shape  of  compensation  or  the  waiver  of  indebtedness 
incurred  by  his  misconduct,  —  follow  one  invariable  rule :  that 
equity  will  relieve  the  ward  against  the  consequences  of  his 
one-sided  transaction.2 

In  this  country  the  rule  is  somewhat  different ;  for  certain 
circumstances,  such  as  public  recognition  that  compensation  of 
some  sort  is  justly  due  a  trustee  for  his  services,  may  fairly 
contribute  to  relax  the  rule  in  the  guardian's  favor.  Settlements 
and  bargains  between  the  guardian  and  ward  out  of  court  are, 
however,  frequently  set  aside  for  corrupt  influence.  So  are  gifts 
and  conveyances  in  consideration  of  the  guardian's  services  ; 
more  especially  when  undue  influence  is  shown  from  special 
circumstances.3  A  guardian  cannot  recall  his  own  gift  to  his 
ward  ;  though  such  a  gift  might  lead  the  court  to  regard  the 
guardian's  account  for  expenditure  with  favor  towards  him.4 
In  Pennsylvania  it  is  said  that  settlements  will  not  stand  unless 

1  Hatch  v.  Hatch,  9  Ves.  206.  Sen   379,  where  gift  to  an  agent  was 

2  Hvlton    v.    Hylton,   2    Ves.    547 ;     supported. 

Wood  v.   Downes,   18  Ves.  120;  Mnl-  *  Hall  v.  Cone,  5  Day,  543 ;  Waller 

haiku  '■.  .Mannti,  3    Dr.   &    W.  317;  v.  Armistead,  2  Leigh,   11;  Sullivan  v. 

ardc   Kearney,  2  Ball  &  B.  463;  Blackwell,   28   Miss.    737;    Clowea    v. 

Hunter    V.    Atkins,    3    M.  &   K.     135';  Van    Antwerp,  4   Barb.  416 ;  Briers  v. 

Macphers.     Inf.    200-264;    Bevett   v.  Hackney,  6  Ga.  41 9 ;  Fridge  ».  State, 

Harvey,  I    Sim.   &  Stu.  502;  Duke  of  3    Gill   &    Johns.  103;   Richardson  v. 

Hamilton  v.  Lord   Mohnn,  1   P.  Wins.  Linney,  7  B.  Monr.  571. 

118.    Bat  see  Cray  v.  Mansfield,  1  Vea.  *  Bond   v.  Lockwood,  33  111.212; 

Pratt  v.  McJunkin,  4  Rich,  5. 

624 


CHAP.  IX.J    RIGHTS   AND   LIABILITIES    OF  THE  WARD.      §  388 

full  deliberation  and  good  faith  are  manifest ;  Lut  that  a  settle- 
ment made  in  good  faith,  especially  if  wise  and  prudent,  cannot 
be  impeached,  after  the  ward's  death,  by  his  representatives.1 
This  is  doubtless  the  rule  elsewhere.  And  the  mere  fact  that  a 
settlement  has  been  made  between  guardian  and  ward,  with 
allowances  in  the  guardian's  favor,  is  not  conclusive  of  fraud, 
though  every  intendment  is  still  to  be  construed  on  the  ward's 
behalf.2  Circumstances,  such  as  great  inadequacy  of  price  in 
a  guardian's  purchase  of  his  ward's  property  shortly  after  the 
latter  reaches  majority,  would  doubtless  suffice,  if  not  rebutted 
by  ample  proof  of  fairness,  for  setting  aside  the  transaction  as 
fraudulent.3  In  general,  the  burden  is  on  the  guardian  who 
relies  upon  an  outside  informal  settlement  to  show  a  full  dis- 
closure and  that  the  ward  understood  himself  to  be  making  a 
full  and  final  settlement.4 

The  fact  that  settlements  out  of  court  are  not  generally  re- 
garded in  this  country  as  conclusive,  inasmuch  as  the  probate 
guardian  must  still  file  his  accounts  and  submit  his  transactions 
to  the  court,  is  a  great  safeguard  against  fraud.  A  fixed  rule  is 
established  for  the  final  adjustment  of  all  matters  in  controversy 
between  guardian  and  ward.5  The  chancery  practice  is  to  allow 
the  ward  a  reasonable  time,  after  attaining  majority,  usually  one 
year,  to  reopen  all  accounts  between  himself  and  his  guardian.6 
Hence  a  receipt  in  full,  or  a  formal  release,  has  been  set  aside 
as  inconclusive.7  And  where  the  ward  has  made  a  partial  in- 
spection only,  without  examining  the  vouchers,  or  acted  without 
advice,  or  upon  imperfect  knowledge  of  the  facts,  so  much  the 

1  Hawkins's  Appeal,  32  Penn.  St.  compel  a  settlement.  Hailey  v.  Bond, 
263  64  Ala.  399. 

2  Kirby  v.  Taylor,  6  Johns.  Ch.  242 ;  6  Matter  of  Van  Home,  7  Paige, 
McClellan    v.    Kennedy,    8    Md.  230;  46. 

Spalding   v.    Brent,   3    Md.    Ch.   411;  7  But  a  valid  release  absolving  from 

Meek  v.  Perry,  36  Miss.  190;  Myer  v.  all   liability  to   account,    and    in    fact 

Rives,  1 1   Ala.  760.  acquitting  the  guardian  of  liability  for 

3  Eberts  v.  Eberts,  55  Penn.  St.  110;  unauthorized  acts,  is  iu  some  cases 
Snell  v.  Elam  2  Heisk.  82.  recognized ;  the  late  ward  having  thus 

4  Gregory  v.  Orr,  61  Miss.  307.  acted  when  free  from  undue  influence 

5  In  some  States  the  probate  courts  and  as  one  clearly  sui  juris.  Satterfield 
and  chancery  courts  have  concurrent  v.  John,  53  Ala.  127  ;  Cheever  v.  Cong 
jurisdiction,  ard  the  ward  may  at  his  don,  34  Mich.  296. 

election   proceed    in   either   forum   to 

40  625 


§3* 


THE    DOMESTIC    RELATIONS. 


[PART  IV. 


greater  is  his  equity  to  relief.1  But  in  probate  guardianship, 
settlements  out  of  court  usually  give  way  to  settlements  in 
court.2  A  settlement  made  out  of  court,  with  no  filing  of  ac- 
counts, and  shortly  after  the  ward  reaches  full  age,  is  regarded 
with  suspicion,  and  the  guardian  should  satisfy  the  court  that  it 
was  a  fair  one.3  A  settlement  out  of  court,  so-called,  without 
turning  over  the  property  is  no  settlement.4  But  if  the  guar- 
dian seeks  the  court  of  his  own  choice,  and  the  ward  makes  no 
objection  to  the  guardian's  final  account  as  presented,  or  records 
his  approval,  and  it  is  thereupon  judicially  approved  and  re- 
corded, and  appeal   is   not  taken,  no    necessity  for  application 


1  Revett  v.  Harvey,  1  Sim.  &  Stu. 
502  ;  Wych  v.  Packington,  3  Bro.  P.  C. 
46  ;  Rapalje  v.  Norsworthy,  1  Sandf. 
Ch.  399  ;  Johnson  v.  Johnson,  2  Hill 
Ch.  277  ;  Womack  v.  Austin,  1  S.  C. 
N-.  S.  421. 

'-'  Although  the  guardian  has  settled 
with  his  ward  on  the  hitter's  arrival  at 
full  age,  lie  may  be  called  afterward 
to  file  and  settle  his  account.  Marr's 
Appeal,  78  Penn.  St.  66.  The  guar- 
dian must  deliver  to  the  proper  party 
entitled.  A  guardian's  deposit  of  funds 
with  a  county  clerk,  who  afterwards 
defaults,  held  (such  officer  not  being 
officially  accountable  for  such  funds) 
to  lender  the  guardian  and  his  bonds- 
man accountable  and  not  the  defaulting 
clerk's  bondsman.  Scott  v.  State,  46 
Lid.  203  ;  State  v.  Fleming,  46  Ind. 
206.  And  this  even  though  the  court 
directed  the  guardian  upon  resigning 
to  deposit  thus.  Ib.;sedqu.  Verbal  di- 
rections of  a  judge  of  probate  will  not 
:  a  guardian.  Folger  v.  Ileidel, 
60  Mo.  284.  A  guardian  having  niort- 
gaged  as  additional  security  for  in- 
Iness  to  his  ward,  a  suit  to  fore- 
close is  no  bar  to  proceedings  for  ac- 
counting against  him  and  his  sureties. 
Lanier  v.  Griffin,  11  S.  C.  565.  As  to 
«  i  partt  settlement  in  court,  sec  ( }ra- 
\<t'  v  Malone,  54  Ala.  19.  A  guardian's 
so-called  account  is  inconclusive  as 
such,  uides-  submitted  to  and  approved 
by  the  court.  Beedle  v.  State,  62  Ind. 
26,    Judg mi  el   in!'  money  found  to  be 

626 


due  by  a  guardian  to  his  ward  on  set- 
tlement with  the  ordinary  must  be  col- 
lected by  process  of  execution ;  at- 
tachment for  contempt  based  on  the 
failure  of  the  guardian  to  pay  and  re- 
turn of  nulla  bona  does  not  lie.  Burrow 
v.  Gilbert,  58  Ga.  70.  And  see  as  to 
indictment,  State  v.  Henry,  1  Lea,  720. 
Nor  has  the  ward  a  lien,  equitable  or 
otherwise,  upon  his  guardian's  general 
estate  to  secure  an  honest  manage- 
ment. Chanslor  v.  Cliauslor,  11  Bush, 
C63 ;  Vason  v.  Bell,  53  Ga.  416.  As  to 
accepting  security  from  the  guardian 
in  lieu  of  the  security  of  his  bond,  see 
Querin  v.  Carlin,  30  La.  Ann.  1131. 

Final  settlement  with  infant  ward 
duly  represented  by  a  guardian  ad 
litem  is  as  binding,  as  a  rule,  as  a  sim- 
ilar one  made  with  an  adult.  Stabler 
v.  Cook,  57  Ala.  22.  But  no  final  set- 
tlement of  a  guardian's  account,  so  as 
lo  operate  against  the  ward's  rights, 
can  be  made  by  the  court  while  the 
relation  of  guardian  continues.  Lewis 
v.  Allred,  57  Ala.  628.  In  Brown  v. 
Chadwick,  79  Mo.  587,  a  guardian  paid 
over  a  certain  amount  to  his  late  ward, 
but  on  mutual  settlement  in  the  pro- 
bate court,  a  balance  was  found  due 
the  guardian.  For  receipts  given  by 
the  ward  after  becoming  of  age,  ac- 
quiesced in  for  mure  than  four  years 
ami  held  prima  facie  binding,  see  68 
(ia.  741  ;   19  S.  ('.  560. 

:!  Roth's  Estate,  150  Penn.  St.  261. 

1   Line  v.  Lawder,  122  Ind.  548. 


CHAP.  IX.]    RIGHTS   AND   LIABILITIES   OF   THE  WARD.      §  388 


of  the  chancery  rule,  of  reopening  the  account,  seems  to  exist, 
except  upon  very  strong  proof  of  fraud  or  error.1  If  the  ward 
be  dead,  the  guardian's  settlement  must  be  with  the  ward's 
executor  or  administrator ;  but  even  thus  a  probate  guardian's 
settlement  is  usually  subject  to  the  court's  revision  upon  his 


1  Kittredge  v.  Betton,  14  N.  H.  401  ; 
Musser  v.  Oliver,  21  Penn.  St.  362. 
Pierce  v.  Irish,  31  Me.  254;  Boynton 
v.  Dyer,  8  Pick.  1  ;  Hickman's  Appeal, 
7  Barr,  4G4  ;  Southall  v.  Clark,  3  Stew. 
&  Port.  338 ;  McDow  v.  Brown,  2  S.  C. 
n.  s.  95 ;  Bybee  v.  Tharp,  4  B.  Monr. 
313;  72  Ala.  300.  Yet  a  bill  in  chan- 
cery for  correction,  &c,  may  be  main- 
tained, notwithstanding  the  ward's  cer- 
tificate approving  the  probate  account. 
Monuin  v.  Beroujon,  51  Ala.  196  ;  Bruce 
v.  Doolittle,  81  111.  103;  Lindsay  v. 
Lindsay,  28  Ohio  St.  157.  These  are 
matters  of  statute  regulation.  High 
v.  Snedicor,  57  Ala.  403.  After  long 
lapse  of  time  following  a  probate  set- 
tlement, every  intendment  is  in  its 
favor.  66  Md.  250.  Among  decisions 
which  apply  to  transactions  between 
guardian  and  ward  the  following  may 
be  noticed.  Where  a  guardian  ad- 
vances money  on  his  ward's  account, 
he  may  have  an  assignment  of  the  se- 
curity. Kelchner  v.  Forney,  29  Peim. 
St.  47.  In  extending  time  for  payment 
of  a  security  the  guardian  may  some- 
times arrange  fairly  with  his  ward 
for  special  compensation.  Burnham  v. 
Dalling,  3  C.  E.  Green,  132.  The  guar- 
dian who  does  not  insist  on  surrender- 
ing good  securities,  properly  taken,  as 
the  estate  of  his  ward,  but  pays  out  of 
his  own  funds  instead,  in  part,  may  be- 
come to  a  corresponding  extent  joint 
owner  of  the  securities.  Higgins  v. 
McClure,  7  Bush,  379.  But  the  guar- 
dian's own  note  or  bond  for  the  balance 
of  money  adjudged  due  on  a  final  set- 
tlement is  no  payment  to  the  ward,  nor 
does  it  discharge  the  guardian's  sure- 
ties. It  is  a  mere  postponement  of 
final  payment,  and  affords  evidence 
of  an  admitted  liability  on  his  part. 
Wardlaw    v.    Gray,   2    Hill    Ch.    644; 


Hamlin  v.  Atkinson,  6  Rand.  574.  See- 
also  Douglas  v.  State,  44  Ind.  67 ; 
Coleman  v.  Davies,  45  Ga.  489.  The 
guardian  cannot  buy  up  an  equitable 
encumbrance,  and  enforce  it  against 
the  ward  who  is  ready  to  refund.  Tay- 
lor v.  Taylor,  6  B.  Monr.  559.  The 
ward  may  release  to  one  of  joint  guar- 
dians, and  thus  hold  the  sureties, 
Kirby  v.  Taylor,  6  Johns.  Ch.  242 ; 
though  this  principle  may  be  affected 
by  general  rules  as  to  probate  bonds. 
A  receipt  in  full  discharges  only  for 
the  amount  actually  received  by  the 
wards,  may  be  contradicted  by  parol, 
and  binds  only  such  wards  as  were  au- 
thorized to  give  it;  and  its  validity' 
and  effect,  though  under  seal,  may  be 
considered  in  court.  Witman's  Ap- 
peal, 28  Penn.  St.  376 ;  Beedle  v.  State, 
62  Ind.  26  ;  Barnes  v.  Compton,  8  Gill, 
391;  Feltou  v.  Long,  8  Ired.  Eq.  224; 
Magruder  v.  Goodwyn,  2  P.  &  H.  561 ; 
Stark  i\  Gamble,  43  N.  H.  465 ;  Wade 
v.  Lobdell,  4  Cush.  510.  Cf.  n.  7, 
supra,  p.  625;  4  Kedf.  Surr.  310.  It 
may  appear  that  doubtful  notes,  like 
the  guardian's  own  note,  were  accepted 
not  in  settlement,  but  for  postponement 
of  payment.  122  Ind.  548.  The  set- 
tlement of  an  insolvent  guardian  with 
his  ward  is  sometimes  protected  by  a 
court  of  equity  as  against  the  guardian's 
assignee  in  insolvency.  Moore  v.  Hazel- 
ton,  9  Allen,  102.  Statutes  are  found 
which  permit  the  ward  at  full  age  to 
waive  his  legal  right  to  an  account  and 
join  his  guardian  in  asking  the  court 
for  a  discharge.  Marr's  Appeal,  78 
Penn.  St.  66.  A  guardian's  probate 
settlement  will  not  be  presumed  to  in- 
clude damages  sustained  by  the  infant's 
estate  through  fraud  or  misconduct  of 
the  guardian.     44  N.  J.  L.  64. 

627 


§  389  THE   DOMESTIC   .RELATIONS.  [PAKT  IV. 

accounts.1  In  short,  the  proper  place  to  seek  for  an  accounting, 
according  to  American  practice,  is  the  probate  court ;  and  the 
theory  is  that  every  guardian  shall  settle  with  the  judge,  or 
with  a  successor,  or  with  the  ward  at  full  age,  or  with  the 
ward's  legal  representatives,  as  the  case  may  be,  and  upon  final 
settlement  pay  over  and  deliver  all  the  ward's  property  and 
balances  which  may  thus  be  found  due  ;  otherwise  action  may 
be  had  upon  his  bond  as  for  breach  of  condition  thereof.2  Ac- 
cord and  satisfaction  with  the  adult  husband  of  a  married  minor 
ward,  which  upon  the  theory  of  the  old  common  law  might  have 
been  admissible,  is  not  to  be  favored  in  these  days  when  a  wife's 
separate  property  is  so  zealously  protected ; 3  but  joint  orders 
and  joint  receipts  by  the  married  female  ward  and  her  husband, 
if  she  be  still  an  infant,  are  favorably  regarded.4  Lapse  of  time, 
following  an  informal  settlement  made  with  a  ward  who  had 
reached  majority,  will  bar  a  suit  for  an  account  in  chancery,  and 
raise  a  presumption  that  all  transactions  between  them  have 
been  properly  adjusted.5  And  even  in  our  probate  guardianship 
the  late  ward's  release  and  receipt  in  full  may  under  favorable 
circumstances  be  shown  either  in  defence  to  a  citation  to  settle 
accounts  in  court  or  as  a  voucher  upon  such  settlement.6 

§  389.  Transactions  after  Guardianship  is  ended.  —  Transac- 
tions after  the  period  of  guardianship,  between  parties  lately 
holding  the  relation  of  guardian  and  ward,  especially  if  the  ward 
still  remains  under  the  influence  of  a  former  guardian,  may  be 
set  aside  upon  the  same  principle  of  constructive  fraud.  It  is 
true  that  bargains  between  them  are  good  whenever  the  influ- 
ence is  fully  removed  ;  even  to  gifts  and  conveyances  in  con- 

1  Ordway  v.  Phelps,  45  Iowa,  279.         to  having  accounts  settled   in  probate 

2  Hut  as  to  the  guardian  of  a  person  court.  Wing  v.  Rowe,  69  Ale.  282; 
formerly  insane,  some  States  hold  that    Monnin  v.  Beroujon,  51  Ala.  196. 

he  maysettle  with  his  ward  after  the  4  Dnnsford  v.  Brown,  19  S.  C.  560; 

wunl     has    recovered     his    reason,   ami  6S  6a.  741  ;  86  N.  C.  181. 

Deed    not  Bubmil    his  account   to  the  5  Bickerstaff    v.  Marlin,    60    Miss. 

probate  court.     Hooper  r.  Hooper,  26  509.     An  infant  wife  cannot  pursue  the 

Mich.    135.     An    insane   person   under  guardian's  bond,  unless  her  husband  is 

guardianship  cannot   Bue    to   impeach  of  full  age.    88lnd.  200.   See  80  Ala.  22. 

property  made  by  his  guar-  '■  156  Penn.  St.  368;  Ela  v.  Ela,  84 

dian.     Rohi   on  v.  Martin,'.).!  ind.  420.  Me.  42.'f.     Especially   when    given   by 

•;  Married    wards   stand    essentially  the  ward  two  years  or  more  after  reach 

iij/oii    fche    .-aini'    fooling   ;is    Others,    as      ing  majority. 

G28 


CHAP.  IX.]    RIGHTS    AND    LIABILITIES   OF   THE  WARD.       §  389 

sideration  of  past  services,  the  accounts  having  "been  finally- 
closed,  the  property  duly  transferred,  and  the  late  parties  to 
the  fiduciary  relation  standing  toward  one  another  as  man  and 
man.  Under  these  circumstances,  the  late  guardian  may  pur- 
chase property  of  his  late  ward.1  But  such  transactions  are 
always  to  be  regarded  with  suspicion.  And  where  the  influence 
still  continues,  as  if  the  ward  be  a  female,  or  a  person  of  weak 
understanding,  and  the  guardian  continues  to  control  the  prop- 
erty or  to  furnish  a  home,  the  court  is  strongly  disposed  to  set 
aside  the  bargain  altogether.2  Thus,  where  a  guardian  procures 
the  late  ward's  indorsement  of  his  own  notes  without  consider- 
ation, the  parties  who  take  such  notes  with  knowledge  of  the 
fiduciary  relationship  have  been  enjoined  from  enforcing  them 
against  the  indorser.3  And  if  the  guardian  purchase  rights  of 
the  late  ward  in  his  father's  property  for  a  grossly  inadequate 
consideration,  it  will  be  set  aside.4  The  circumstance  that  the 
guardian  had  better  opportunities  of  acquaintance  with  the 
actual  condition  and  value  of  the  property  than  the  ward  him- 
self is  properly  to  be  considered  on  the  latter's  behalf.  Pur- 
chases of  the  guardian's  property  by  the  late  ward  are  to  be 
closely  scrutinized  in  like  manner.5  In  all  such  cases  and 
wherever  the  late  guardian  has  extended  the  influence  of  his 
former  relation  to  procuring  some  undue  advantage,  equity  may 
interfere  and  enjoin  or  charge  him  as  trustee  or  compel  him  to 
make  restitution ;  not  usually,  however,  in  the  sense  that  he  is 
still  a  guardian.6 


1  Oldin  v.  Samborn,  2  Atk.  15.  see  Cowan's  Appeal,  74  Penn.  St.  329; 

2  See  Macphers.  Inf.  260 ;  Huguenin  fe  Wood,  71  Mo.  623.  Such  transac- 
v.  Baseley,  14  Ves.  273;  Dent  v.  Ben-  tions  may  be  set  aside  against  one 
nett,  4  M.  &  C.  269  ;  Mellish  v.  Mellish,  recent  fiduciary  and  upheld  ngainst  an- 
1  Sim.  &  Stu.  138  ;  Dawson  v.  Massey,  other,  as  the  equity  of  the  case  may 
1  Ball  &  B.  219;  Harris  v.  Carstarphen,  warrant.  Berkmever  v.  Kellerman,  32 
69  N.   C.  416;  Garvin   r.  Williams,   50  Ohio  St.  239. 

Mo.  206.  6  People  r.  Seelye,  146  111.  189.     But 

3  Gale  v.  Wells,  12  Barb.  84.  should  the  guardian  remain  in  full  con- 

4  Wright  v.  Arnold,  14  B.  Monr.  trol  of  the  fund  after  the  ward's  major- 
638  ;  Williams  v.  Powell,  1  Ired.  Eq.  ity,  a  probate  court  may  treat  it  as  in 
460;  Wickiser  v.  Cook,  85  111.  68.  effect  a  continuance  of  the  guardian- 

8  Sherry  v.  Sansberry,  3   Ind.  320.  ship,  and  require  all  such  transactions 

But  as  to  carrying  ont,  on  arriving  at  to  go  into  the  accounts.   46  N  J.  Eq.  285. 
age,  a  reasonable  family  arrangement, 

629 


§  389  THE   DOMESTIC   KELATIONS.  [PART   IV. 

This  principle  applies  to  quasi  guardians,  even  to  parents. 
Not  many  years  since,  a  young  lady,  who  had  been  living  for 
thirteen  years  with  her  mother  and  stepfather,  joined  the  latter 
within  twelve  months  after  she  became  of  age,  at  his  request  and 
under  his  influence,  in  a  promissory  note  for  which  she  received 
no  consideration.  The  payee  some  years  later  obtained  judg- 
ment at  common  law,  and  was  about  to  take  out  execution,  when 
the  court  of  chancery  interfered  on  motion,  restrained  the  payee 
from  enforcing  his  execution,  and  ordered  the  money  paid  into 
court.1 

But  the  ward  may  be  barred  by  the  lapse  of  time  alone,  or  of 
time  in  connection  with  his  own  acts,  from  disaffirming  in  law  or 
equity  his  own  transactions  or  his  guardian's  unauthorized  acts ; 
though  to  be  barred  by  his  own  acts  in  all  such  transactions,  it 
should  appear  that  he  acted  after  termination  of  his  disability, 
with  deliberation  and  on  full  knowledge  of  the  essential  facts.2 
Thus,  where  a  guardian  has  exceeded  his  ward's  income  in  pur- 
chasing for  him  a  horse  and  buggy,  there  will  be  a  ratification 
presumed  from  circumstances  showing  that  the  ward  used  them 
after  majority  and  received  the  proceeds  of  their  sale.3  And  the 
composition  of  a  debt  on  fair  terms,  made  between  an  insolvent 
guardian  and  his  ward  about  eight  years  after  the  latter  became 
of  age,  will  not  readily  be  set  aside  for  the  purpose  of  enabling 
the  ward  at  so  late  a  day  to  reach  the  sureties  on  the  guardian's 
bond.4  Where  the  late  ward  sets  aside  the  transaction  for  un- 
due influence  he  ought  to  refund  the  money,  if  any,  which  he 
received  by  way  of  consideration.5 

But  mere  silent  acquiescence  in  a  guardian's  unlawful  and 
prejudicial  acts  is  not  readily  treated  as  debarring  the  ward  from 

1   Espey  v.  Luke,  15  E.  L.  &  Eq.  579.  1  Head,  357  ;  Macphers.  Inf.   538-543  ; 

Ami   see    Maitland    v.  Backhouse,    16  Lee   v.  Brown,  4   Ves.   361  ;   Cory   v. 

Sim.  58.  Gertcken,  2  Madd.  40;  Allfrey  v.  All- 

-   Fish    v.   Miller,    1    Iloff.  Ch.  267;  frey,  11  Jur.  981. 

Billion   v.   Miller,  27   Ga.  78;  Scott  v.  a  Caffey  v.  McMichael,  64  N.  C.  507. 

Freeland,   7    S.  &   M.   409;    Hume   v.  As  to  lapse  of  time  as  a  barrier,  see 

Home,  S  Barr,  144;  Worrell's  Appeal,  supra,  §  382. 

■jr,  I'.-mii.  St.  44  ;  Sherry  v.  Sansberry,  '  Motley  v.  Motley,  45  Ala.  555. 

8  del  820;  Penn  v.  Heisey,  19  111.  295;  6  Wickiser  v.  Cook,  85  111.  68.    See 

Trader  v.  Lowe,  45  Md.  I  ;  Ferguson  v.  a  delay  favorably  regarded  in  Voltz  v. 

Lowe  r.,  5  i  Ala.  510;  Singleton  v.  Love,  Voltz,  75  Ala.  555. 

630 


CHAP.  IX.]    RIGHTS  AND    LIABILITIES    OF   THE  "WARD.       §  390 

asserting  his  rights  at  majority;  and  to  estop  the  latter  by  ratifi- 
cation, Unit  ratification  should  be  clear  and  founded  upon  a  knowl- 
edge of  the  whole  circumstances.1  And  where  the  ward  was  not 
informed  of  his  rights  sooner,  he  is  free  to  assert  them.2  To  as- 
sert them,  however,  against  the  guardian  so  as  to  pursue  the 
innocent  sureties  on  the  guardian's  bond,  or  a  former  guardian, 
is  another  matter.3 

§  390.  Marriage  of  Ward  against  Consent  of  Chancery  or 
Guardian.  —  It  is  the  rule  of  the  English  courts  of  chancery  that 
no  one  can  marry  a  ward  of  the  court  without  its  express 
sanction.  And  wherever  a  guardian  is  appointed  he  must  give 
a  recognizance  that  the  infant  shall  not  marry  without  its  leave.4 
If  a  man  marry  a  female  ward  without  the  approbation  of  the 
court,  he,  and  all  others  concerned,  will  be  treated  as  guilty  of  a 
contempt  of  court,  and  punished  accord ingly.  So  where  there  is 
reason  to  suspect  an  improper  marriage  of  its  wards,  the  court 
will  interfere,  by  injunction,  to  prevent  the  marriage,  to  forbid 
all  intercourse  between  the  lovers,  and  even  to  take  the  ward  from 
the  custody  of  the  guardian  or  any  other  person  who  is  supposed 
guilty  of  connivance  with  the  match.  When  an  offer  of  mar- 
riage is  made,  the  court  refers  it  to  a  master  to  ascertain  and 
report  whether  the  match  is  suitable,  and  also  what  settlement 
should  be  made  upon  the  ward.  Where  a  marriage  has  been 
celebrated  without  leave,  the  court  will  interfere  to  protect  the 
female  ward  against  the  consequences  of  her  indiscretion,  and 
compel  the  husband  to  make  a  suitable  settlement  upon  her. 

1  Folev  r.  Mutual  Life  Co.,  138  N.  Y.  Settlement  of  a  decedent's  estate  is 
333.     Cf.  70  Miss.  813.  not  to  be  reopened  after  fifty  years  at 

2  As  where  the  guardian  had  care-  the  instance  of  one  distributee  who  was 
lessly  and  without  right  paid  over  cer-  an  infant  when  the  decree  was  entered, 
tain  proceeds  of  the  ward's  property  to  75  Md.  287.  Nor  are  heirs  of  a  de- 
the  ward's  mother.     154  Penn.  St.  491.  ceased  ward  to  be  favored  in  reopening 

3  See  Hart  v.  Stribling,  25  Fla.  435  ;  what  appears  to  have  been  fairly  af- 
Hill  v.  Lancaster,  88  Ky.  338.  Where  firmed,  so  as  to  disturb  vested  rights. 
the  guardian  is.  at  the  ward's  majority,  85  Me.  137. 

appointed  her  trustee,  or  goes  on  as  her  4  Story,  Eq.  Juris.  §§  1358-1361 ; 
attorney,  some  affirmative  and  unequi-  Macphers.  Inf.  191-209  ;  Eyre  v.  Count- 
vocal  act  by  which  he  elects  to  hold  the  ess  of  Shaftesbury,  2  P.  Wms.  Ill; 
fund  in  the  new  capacity  may  be  re-  Smith  v.  Smith,  3  Atk.  305 ;  Stackpole 
garded  favorably  as  to  the  surety  on  the  v.  Beaumont,  3  Ves.  98  ;  Stevens  v. 
guardianship  bond.  108  Mo.  22.  Cf.  Savage,  1  Ves.  Jr.  154. 
§§  376,  377. 

631 


§  390 


THE    DOMESTIC    RELATIONS. 


[PART   IV. 


This  whole  subject  is  peculiar  to  the  laws  of  England,  and  has 
no  application  whatever  to  courts  of  chancery  in  this  country ; 
unless  it  be  that  orders  might  issue  in  some  cases  of  improvident 
marriage  to  compel  the  settlement  of  a  suitable  portion  upon  the 
female  ward.  Yet  authority  is  wanting  for  even  the  exercise  of 
chancery  jurisdiction  to  this  full  extent :  so  repugnant  does  it  ap- 
pear to  the  whole  tenor  of  our  legislation.  But  where  property 
of  a  female  ward  is  under  the  control  of  a  court  of  equity,  and 
the  husband  needs  its  assistance,  a  suitable  provision  might  be 
compelled  on  her  behalf ;  for  this  would  be  in  accordance  with 
the  general  law  of  husband  and  wife.1 


1  Kenny  v.  Udall,  5  Johns.  Ch.  464, 
473;  s.  c.  3  Cow.  591;  Van  Epps  v. 
Van  Deusen,  4  Paige,  64;  Van  Deusen 
v.  Van  Deusen,  6  Paige,  366.  See  also 
Redfield's  n.  to  Story,  Eq.  Juris.  §  1361 ; 
Chambers  v.  Perry,  17  Ala.  726.  The 
guardian  of  a  ward  who  has  impru- 
dently married  without  his  assent  has 
been  permitted,  in  this  country,  to  bring 
a  bill  in  equity  for  procuring  the  settle- 
ment of  the  ward's  moderate  fortune 
upon  her,  against  her  husband's  wishes. 
Murphy  v.  Green,  58  Tenn.  403.  Trusts 
for  children  are  sometimes  made  with  a 
proviso  as  to  the  child's  marrying  with 

632 


the  approbation  of  the  trustee  or  tes- 
tamentary guardian.  See  Tweedale  v. 
Tweedale,  7  Ch.  D.  633. 

As  to  a  settlement  upon  a  female 
infant,  a  ward  of  chancery,  who  mar- 
ried without  the  sanction  of  the  court 
or  the  knowledge  of  the  guardian,  and 
was  afterwards  divorced,  see  Buck- 
master  v.  Buckmaster,  33  Ch.  D.  482  ; 
§  399.  And  see  25  Ch.  D.  482.  No 
jurisdiction  lies  to  compel  an  infant 
ward  of  court  to  make  settlement  of  his 
own  property  because  of  his  marriage 
without  leave.     40  Ch.  D.  290. 


CHAP.  I.]      THE   GENERAL   DISABILITIES   OF   INFANTS.     §  391 


PART    V. 

INFANCY. 


CHAPTER   I. 

THE   GENEEAL   DISABILITIES    OF   INFANTS. 

§  391.  Age  of  Majority.  —  All  persons  are  infants,  in  legal 
contemplation,  until  they  have  arrived  at  majority.  The  period 
of  majority  differs  in  different  States  and  countries;  but  this 
general  principle  remains  the  same. 

By  the  civil  law.  full  majority  was  not  attained  until  the 
person  had  completed  his  twenty-fourth  year ;  he  was  then  said 
to  be  iperfzctm  cetatis — octatis  legitimce.1  .  This  period  was  like- 
wise adopted  in  France  (though  it  was  afterwards  changed),  and 
it  prevails  still  in  Spain,  Holland,  and  some  parts  of  Germany.2 
By  the  French  civil  code,  the  age  of  full  capacity  is  twenty-one 
years,  except  that  twenty-five  years  is  the  majority  for  contract- 
ing marriage  without  paternal  consent,  by  the  male,  and  twenty- 
one  by  the  female.3  The  law  of  Scotland  adopts  the  age  of 
twenty-one.4  Among  the  Greeks  and  early  Piomans  women 
were  never  of  age,  but  subject  to  perpetual  guardianship,  except 
as  wives ;  this  gradually  changed,  and  the  civil  law,  as  it  stood 
in  the  time  of  Justinian,  permitted  females  as  well  as  males  to 
attain  their  majority  at  twenty-five.5 

The  common  law  of  England,  from  the  remotest  times,  has 
fixed  twenty-one  as  the  period  of  absolute  majority  for  both 
sexes ;  or,  to  be  more  exact,  an  infant  attains  full  age  on  the 

1  1  Burge,  Col.  &  For.  Laws,  113.  <  Ersk.  Inst.  b.   1,   tit.   vii. ;    1   BL 

2  lb.  114.  Com.  464. 

3  Code  Civil,  §§  145,  488  ;  2  Kent,  6  inst.  1,  23,  1  ;  1  Bl.  Com.  464. 
Com.  233. 

633 


§  392  THE  DOMESTIC   RELATIONS.  [PART   V. 

beginning  of  the  day  next  preceding  the  twenty-first  anniver- 
sary of  his  birth.1  The  same  rule  is  applied  in  most  parts  of 
the  United  States,  though,  in  some  of  the  States,  females  have 
an  enlarged  capacity  to  act  at  eighteen.2  Under  the  statutes 
of  Vermont,  Ohio,  and  Illinois,  and  various  western  States, 
females  are  deemed  of  age  at  eighteen.3  The  Code  of  Loui- 
siana follows  common-law,  not  civil-law,  principles,  and  adopts 
twenty-one  as  the  limitation  for  both  sexes.4  Thus  arbitrary  is 
the  law  which  fixes  the  period  of  majority  ;  nature  assigning  no 
precise  and  uniform  period  at  which  the  disability  of  infancy 
shall  cease,  yet  clearly  indicating  that  there  must  be  some  such 
period. 

A  man  born  the  first  day  of  February,  1600,  after  eleven 
o'clock  at  night,  was  adjudged  in  England  to  be  of  full  age  after 
one  o'clock  on  the  morning  of  the  last  day  of  January,  1621.5 
This  is  because  the  common  law  makes  no  allowance  for  frac- 
tions of  a  day.  But  the  civil  law,  in  order  to  secure  to  the  per- 
son the  full  protection  afforded  on  account  of  his  minority,  did 
not  hold  the  commencement  of  the  day  to  be  its  completion,  if 
injurious  to  his  interests.6  In  some  instances  the  civil  law  per- 
mitted the  State  or  sovereign  to  grant  vcnia  cctatis  to  full-grown 
persons  who  stood  in  need  of  it,  and  thus  to  place  them  con- 
structively on  the  footing  of  infants  ;  but  nothing  of  the  sort  is 
recognized  at  common  law.7 

S  392.  Growing  Capacity  during  Non-age  ;  Legislative  Relief 
from  Non-age.  —  The  principle  of  an  enlarging  capacity  in  in- 
fants has  been  incidentally  noticed.  It  is  reasonable  to  suppose 
that  they  who  are  constantly  growing  become  naturally  com- 
petent fur  certain   purposes  long   before  they  attain  complete 

i  2  Kent,  Com.  233  ;  1  Bl.  Com.  463  ;  Texas.     Means    v.  Robinson,   7    Tex. 

1    Sulk.    44;'    Ld.  Raym.  480,   1096;    3  502.     Sec  19  Neb.  429. 

Wils.   274;    Hamlin    v.    Stevenson,    4  6  Fitzhue    v.   Pennington,   6    Mod. 

597  ;  State  v.  Clarke,  3  Marring.  259  ;  1   Salk.  44,  and  citations  in   last 

557  ;   Wells  o.  Wells.  6  Ind.  447.  section.     And  see  1   Jann.  Wills,  Eng. 

-  2  Kent,  Cum.  233.     See  Crapster  ed.   1861,  39;  Met.   Contr.  38.     Judge 

p.  Griffith,  2  Bland  Ch.  5.  Redfleld  dissents  from  this  rule.    See 

■■  Bparhawk  v.  Bnel,  9  Vt.  41  ;  Ste-  1  Redf.  Wills,  18-20. 

,,  v,  Westfall,  18  111.  209.  °  J.  Voet,  lib.  4,  tit.  4,  n.  1. 

1   Louisiana  Code,  arts.  41,93.    This  '  See  1   Burge,  Col.  &  For.  Laws, 

e    long-settled    rule   likewise   in  116,  117. 

634 


CHAP.  I.]    THE  GENERAL   DISABILITIES   OF   INFANTS.       §  393 

majority,  and  young  men  and  women  may  well  be  allowed  the 
exercise  of  more  discretion  than  babes.  Hence  we  find  that 
infants  of  suitable  age  are  allowed  to  contract  a  valid  marriage ; 
that  males  of  the  age  of  fourteen  and  upwards,  and  females  at 
the  age  of  twelve,  could  once  dispose  of  personal  estate  by  will, 
and  at  fourteeu  may  still  choose  or  nominate  their  own  guar- 
dians ;  that  children  of  discretion  have  a  voice  in  determining 
the  right  of  custody  and  control.  But  not  until  attaining 
majority  could  a  person  at  the  common  law  convey,  lease,  or 
make  contracts  in  general  which  would  bind  him ;  and  the  fore- 
going must  then  be  considered  as  among  the  exceptions  to  the 
rule  that  persons  are  legally  incapable  so  long  as  they  are 
minors.1 

Legislative  or  judicial  emancipation  has  existed  in  Louisiana 
and  some  other  parts  of  this  country  once  under  the  dominion 
of  continental  Europe.  In  the  case  of  an  emancipated  minor 
under  such  statutes,  by  which  he  is  relieved  from  the  time 
prescribed  by  law  for  attaining  the  age  of  majority,  he  is  in- 
vested with  all  the  capacities  in  relation  to  his  property  and 
obligations  which  he  would  have  had  he  actually  arrived  at  the 
age  of  twenty-one  years.  And  he  may  be  appointed  adminis- 
trator of  an  estate  2  or  surety  on  a  bond.3  But  the  right  of 
legislative  emancipation  seems  never  to  have  been  distinctly 
admitted  at  the  common  law  in  auy  such  extensive  sense. 

§  393.  Conflict  of  Laws  as  to  True  Date  of  Majority.  — Sup- 
posing a  contiict  of  laws  should  arise  over  the  contract  of  an 
infant  by  reason  of  the  period  of  majority  being  differently 
assigned  by  the  law  of  the  domicile  of  his  origin  and  that  of 
his  actual  domicile,  or  of  the  situation  of  real  property,  or  of 
the  place  where  he  has  entered  into  a  contract.  The  rules  for 
such  cases  are  these  :  First,  that  the  actual  domicile  will  be  pre- 
ferred to  the  domicile  of  birth.     Second,  that  the  law  of  situa- 

1  Co.  Litt.  78  b,  89  b,  and  Harg.  note,  in  a  summary  manner  and  not  accord- 
As  to  the  privilege  of  wills,  see  stat.  ing  to  the  course  of  the  common  law. 
1  Vict.  c.  26,  §  7  ;  infra,  §  397.  54  Ark.  627 ;   State  v.  Barker,  25  Fla. 

2  Succession  of  Lvne,  12  La.  Ann.  598.    As  to  emancipation  of  a  minor 
155;  Gordon  v.  Gilfoil,  99   U.  S.  168.  in  our  usual  sense,  see  supra,  §  267. 
See  also  State  v.  Bunce,  65  Mo.  349.         3  Cooper  v.   Rhodes,  30    La.  Ann 
A  legislative  power  conferred  upon  the  533. 

courts  to  emancipate  is  to  be  exercised 

635 


§  39i  THE   DOMESTIC    RELATIONS.  [PART  V. 

tioa  of  real  property  must  prevail  over  that  of  domicile.  Third, 
that  the  law  of  the  place  where  a  contract  is  made  must  prevail 
over  that  of  domicile.1  Fourth,  that  in  matters  of  practical 
remedy  in  the  courts,  the  law  of  the  forum  is  sometimes 
conclusive.2 

The  right  of  action  for  the  recovery  of  real  estate  belonging 
to  an  infant  will  be  governed,  not  by  the  law  in  force  when  the 
right  of  action  accrued,  but  by  the  law  in  force  when  the  infant 
became  of  age.3 

§  394.  Infant's  Right  of  Holding  Office  and  Performing  Official 
Functions.  — Xext,  as  to  the  infant's  right  of  holding  office. 
There  are  numerous  old  cases  to  be  found  in  the  books  where 
an  infant  has  been  adjudged  capable  of  holding  offices  that  in- 
volve no  pecuniary  or  public  trust,  and  require  only  moderate 
skill  and  diligence  ;  such  as  the  office  of  park-keeper,  forester, 
sheriff,  and  jailer;  though  on  the  ground  apparently  that  such 
offices  formerly  were  capable  of  grant,  and  the  grantees  had  the 
power  to  act  by  deputy.4  But  the  modern  doctrine  seems  to  be 
clear  that  no  office  of  pecuniary  and  public  responsibility  can 
be  conferred  upon  an  infant;  not  so  much  because  of  mental 
incapacity  on  his  part,  as  for  the  very  good  reason  that  a  person 
who  is  not  legally  responsible  for  the  duties  of  his  office  can- 
not be,  in  point  of  law,  a  proper  person  to  execute  them.  A 
puluic  office  which  requires  the  personal  receipt  and  disburse- 
ment of  money  is  not  then  to  be  filled  by  an  infant.5  Nor  can  an 
infant  act  as  administrator,  executor,  or  trustee,  nor  by  his  con- 
currence (in  the  absence  of  fraud  on  his  part)  sanction  a  breach 
of  trust.6     He  cannot  be  a  guardian,  an  attorney  under  a  power 

1  Male   v.  Roberts,  3   Esp.   163;    1  operation  in  Missouri.     State  t\  Bunee, 

Burge,  Col.  &  For.   Laws,  118  et  seq. ;  65  Mo.  349. 

Story,    Confl.    Laws,    §§    75,    82,   332;  -  As   in    applying    the    bar  of  the 

Thompson  v.  Ketcham,  8  Johns.   189;  statute  of  limitations.     Burgett  v.  Willi- 

Biewtand  v.  Knns,  8  Blackf.  345;  Saul  ford,  56  Ark.  187. 
r.    Hi-    Creditors,    17    Martin,    597;    2  8  Gilker  v.  Brown,  47  Mo.  105. 

Kent,  Com.  233,  n.;  lluey's  Appeal,  1  4  Bac.  Abr.  Infancy  and  Age  (E) ; 

Granl     (Penn.),    51;    Wharton,    Confl.  3    Mod.   222;    Young   v.    Fowler,  Cro. 

§  112.      An   ordet  of  court  of  another  Car.  555  ;  Macphers.  Inf.  448. 
State,  made  in  conformity  to  a  statute         6  Claridge  v.  Evelyn,  5  B.  &  Aid. 

of  that  State,  and  purporting  to  relieve  81.    See  Croshie  v.  Hurley,  1  Alcock  & 

an  infant   residing  in   that  state  from  Napier,  431. 
tli"  disabil         I    non-age,  can  have  no         B  Macphers.  Inf.  449;  Wilkinson  » 

636 


CHAP.  I.]    THE   GENERAL   DISABILITIES   OF    INFANTS.        §  394 

(except  to  receive  seisin),  a  bailiff,  a  factor,  or  a  receiver.1     Noi 
should  he  be  admitted  to  the  bar  as  an  attorney  at  law.2 

The  service  of  a  notice  of  replevy  by  an  infant  is,  in  England, 
illegal  and  void ;  and  it  would  appear  that  he  cannot  be  a 
sheriff's  officer.3  But  in  New  Hampshire  it  is  held  that  an 
infant  may  be  deputed  to  serve  and  return  a  particular  writ; 
on  the  ground  that  while  offices  where  judgment,  discretion,  and 
experience  are  essentially  necessary  to  the  proper  discharge  of 
the  duties  they  impose,  should  not  be  intrusted  to  infants,  offices 
may  be  held  which  are  merely  ministerial,  and  require  nothing 
more  than  skill  and  diligence.4  But  a  distinction  is  properly 
taken  between  the  case  of  officers  of  justice  ordinarily  liable  for 
false  return,  misfeasance,  and  the  like,  and  those  who  have  no 
such  liability  ;  and  for  this  reason,  while,  in  Vermont,  an  infant 
may  serve  a  particular  writ,  he  cannot  be  specially  authorized 
to  serve  mesne  process  by  the  magistrate.5 

In  ancient  times  minors  appear  to  have  frequently  sat  in  the 
British  Parliament.  Thus  it  is  related  that  a  son  of  the  Duke 
of  Albemarle  took  part  in  debate  when  only  of  the  age  of  four- 
teen ;  and  history  states  that  about  the  10th  James  I.  there 
were  forty  members  not  above  twenty  years  of  age,  and  some 
not  above  sixteen.6  But  by  statute  it  is  now  provided  that  an 
infant  cannot  sit  in  the  House  of  Lords,  or  vote  at  an  election 
for  a  member  of  the  lower  house,  or  be  elected.7  There  are 
provisions  in  the  Constitution  of  the  United  States  and  of  the 
different  States,  adopted  undoubtedly  because  it  was  considered 
contrary  to  sound  public  policy  to  commit  any  offices  requiring 
considerable  skill  and  prudence,  not  to  say  pecuniary  and  public 
responsibility,  to  the  young  and  immature.  By  the  Constitution 
of  the  United  States,  no  person  can  be   President  who  has  not 

Parry,    4     Puss.     372.      But    though  3  Cuckson    v.    Winter,  2   M.  &  Ry. 

wrongly  appointed,  he  will  be  liable  to  306. 

account   for    money   received    by   him  4  Moore  v.  Graves,  3  N.  IT.  408.    But 

after    reaching    majority.      Carow    v.  see  Tyler  v.  Tyler,  2  Root,  519.     And 

Mowatt,  2  Edw.  Ch.  57.     And  see  77  see  109  N.  C.  1. 

Hun,  230.  5  Barrett    v.    Seward,    22    Vt.    176, 

1  Macphere.  Inf.  448,  449  ;  Co.  Litt.  Harvey  v.  Hall,  ib.  211  ;  53  Vt.  109. 

3  b,  172.  6  See  Macphers.  Inf.  449,  n.;  1  Pail 

2  Coleman,  ex  parte,   54  Ark.   235.     Deb.  420,  notes. 

But  cf.  25  Fla.  298.  *  7  &  8  Will.  III.  c.  25. 

637 


§  395  THE   DOMESTIC   RELATIONS.  [PART  V. 

attained  the  age  of  thirty-five  years ;  nor  a  senator,  who  is  under 
the  age  of  thirty  years ;  nor  a  representative  in  Congress  who 
is  not  twenty-five  years  of  age.  Corresponding  provisions  abound 
in  the  different  States  as  to  the  eligibility  of  local  officers. 
So  is  the  disqualification  to  vote  universally  applied  by  our 
laws  to  minors,  and  restrictions  upon  the  right  of  suffrage  may 
extend  even  further.1 

The  true  principle  to  be  extracted  from  the  authorities  seems 
therefore  to  be  that  the  court  will  inquire  whether  an  infant, 
as  such,  is  by  law  capable  of  discharging  suitably,  faithfully,  and 
efficiently  the  duties  of  a  particular  office,  and  so  as  to  leave 
open  all  the  usual  remedies  to  others ;  and  this  is  a  proper  rule 
of  guidance,  the  statutes  being  silent,  rather  than  ancient  pre- 
cedents laid  down  concerning  particular  offices  in  times  when 
they  were  transmissible  in  families  and  mere  sinecures.2 

There  are,  undoubtedly,  certain  offices  which  an  infant  may 
properly  hold.  And  the  legislature  is  competent  to  establish  an 
earlier  or  later  period  at  which  persons  shall  be  deemed  of  full 
age  for  certain  purposes.  Hence  in  Massachusetts,  under  a  law 
fixing  eighteen  years  as  the  age  for  military  duty,  and  empower- 
ing an  infant  at  that  age  to  enlist  of  his  own  accord,  and  with- 
out the  parent's  assent,  in  the  militia,  it  is  held  that  he  may  be 
elected  company  clerk,  or  even,  as  it  would  appear,  a  commis- 
sioned officer  of  the  company.3 

§  395.  Infant's  Responsibility  for  Crime.  —  Infants  who  have 
arrived  at  sufficient  maturity  in  years  and  understanding  are 
capable  of  committing  crimes ;  and  it  is  said  that  they  cannot 
plead  in  justification  the  restraint  of  a  parent,  as  married  women 
can  that  of  the  husband ;  although,  as  we  presume,  duress  or 
compulsion  may  be  properly  set  up  in  defence,  wherever  a  young 
child  is  indicted  and  tried  for  a  crime.  The  period  of  life  at 
which  a  capacity  of  crime  exists  is  determined  by  law  to  a  cer- 
tain extent;   for  a  child  under  seven  is  conclusively  incapable  of 

1  The   officer   who  usually  adminis-  not  hold,  see  Pac.   Abr.  Infancy  and 

tth  of  office  cannot  refuse  fco  Age  (E)  ;  also  Moore  v.  Graves,  3  N.  H. 

■  in    such    grounds.      People  v.  40s,  passim. 

Dean,  3   Wind.  438.  8  Dewey,  Petitioner,    11    Pick.  265. 

'-'  For    ome  of  bl Id  decisions  as  to  Sec  Hands  v.  Slaney,  8  T.  P.  578.     In- 

what  offices  :m  infant  might  or  might  fant  may  be  a  notary.    25  Alb.  L.  J  12 

638 


CHAP.  I.]    THE   GENERAL   DISABILITIES   OF   INFANTS.       §  395 

crime,  one  between  seven  and  fourteen  only  prima  facie  so,  and 
one  over  fourteen  prima  facie  capable  like  any  other.1  An 
exception  to  this  rule  is  usually  stated  in  certain  cases  of  physi- 
cal impotence ;  for  it  is  argued  that  a  boy  under  fourteen  years 
of  age  is  physically  undeveloped,  and  therefore  cannot  be  legally 
guilty  of  rape  or  similar  crimes.2  Nor  is  carnal  consent  an 
admitted  palliation  to  one  who  commits  a  crime  upon  a  young 
person,  even  though  the  latter  made  no  resistance.3  Incapacity 
for  committing  a  crime  might  properly  be  considered  in  connec- 
tion with  incapacity  of  criminal  intent ;  and  yet  the  later  rule 
of  Ohio  and  some  other  States  seems  the  more  correct  one,  which 
is  to  reject  in  such  case  any  doctrine  of  conclusive  presumption 
of  incapacity,  and  allow  evidence  of  criminal  intent  to  be  fur- 
nished;4 though  certain  investigations  on  this  point  might  be 
held  contra  bonos  mores.  The  general  rule  is  that  capacity  lor 
crimes  in  persons  above  the  age  of  seven  years  is  a  question  of 
fact;  the  law  assuming  prima  facie  incapacity  under  fourteen, 
and  capacity  over  fourteen  ;  but  subjecting  that  assumption  of 
guilty  intention  to  the  effect  of  proof  concerning  the  real  fact.5 

Where  a  statute  creates  an  offence,  infants  under  the  age  of 
legal  capacity  are  not  presumed  to  have  been  included;6  yet 
where  an  act  is  denounced  as  a  crime,  even  felony  or  treason,  it 
extends  as  well  to  infants,  if  above  fourteen  years,  as  to  others.7 

1  1  Bish.  Crim.  Law,  §  460;  1  Russ.  Commonwealth  v.  Green,  2  Tick.  380  ; 
Crimes,  Grea.  ed.  2  ;  Marsh  v.  Loader,     Wagoner  v.  State,  supra. 

14  C.  B.  n.  s.  535.    The  text-writers  5  State  v.  Learnard,  41  Vt.  585  ;  Wil- 

have   said   that   an   infant    can    never  let   v.  Commonwealth,   13    Bush,  230; 

plead  constraint  of  the  parent,  but  this  Martin  v.  State,  90  Ala.  602  ;  State  v. 

may  be   doubted.      See    Humphrey    v.  Toney,  15  S.  C.  409 ;  76  Mo.  355.     See 

Douglass,  10  Vt.    71;    Commonwealth  Dove  v.  State,  37  Ark.  261.     Where  a 

v.  Mead,  10  Allen,  398;  State  v.  Learn-  child   is   under   fourteen   the   jury,   in 

ard  41  Vt.  585.  order  to  convict,  should  be  satisfied  that 

2  1  Bish.  Crim.  Law,  §§  466,  672,  he  knew  the  distinction  between  right 
and  cases  cited  ;  State  v.  Handy,  4  and  wrong  as  to  the  particular  offence. 
Harring.  566 ;  Reg.  v.  Phillips,  8  Car.  &  Willis  v.  State,  89  Ga.  188  ;  91  Ga.  15. 
P.  736.  But  see  Wagoner  v.  State,  5  There  should  be  more  than  the  infant's 
Lea,  352,  which  holds  that  this  pre-  own  statement  to  remove  the  presump- 
sumption  as  to  a  boy  nearly  fourteen  tion  of  guilty  intent  where  he  is  over 
years  is  not  conclusive,  but"  subject  to  fourteen.  State  v.  Kluseman,  53  Minn, 
proof.  541. 

3  See  Eq..  61  Conn.  50.  6  See  State  ».  Howard.  88  N.  C.  650.. 

4  Williams  v.  State,  14  Ohio,  222;  '  1  Hawk.  1 ;  4  Bl.  Com.  23;  1  Bish. 
People    v.  Randolph,   2    Parker,   174;  Crim.  Law,  §  462. 

639 


397 


THE   DOMESTIC    RELATIONS. 


[PART  V. 


And  a  child  under  fourteen  may  be  within  the  fair  scope  of  a 
particular  statute  misdemeanor.1 

An  infant  may  be  indicted  for  obtaining  goods  by  false  pre- 
tences,2 or  for  stealing.3  He  is  liable  to  bastardy  process.4  And, 
following  the  general  principle  already  announced,  children  less 
than  fourteen  have  been  convicted  for  arson  and  murder,  the 
prima  facie  presumption  of  incapacity  being  overcome ; 5  and 
for  perjury.6  But  a  child  less  than  seven  cannot  be  indicted  for 
nuisance,  though  owner  of  the  land."  And  it  is  reasonable  to 
add  that  the  evidence  of  malice  or  "mischievous  discretion" 
which  is  to  supply  age  ought  to  be  strong  and  clear,  beyond  all 
doubt  and  contradiction.8 

§  396.  Infant's  Criminal  Complaint ;  Discretion  against  Peril, 
etc.  —  An  infant,  it  is  held  in  Tennessee,  may  make  a  criminal 
complaint,  and  be  what  is  known  as  the  prosecutor.9  There  are 
various  criminal  offences  against  young  children  set  forth  in  our 
codes.10 

Corresponding  to  the  presumption  of  criminal  capacity  in  an 
infant  is  that  of  presumed  capacity  to  be  diligent  for  his  own 
personal  safety  against  manifest  peril ;  though  such  presumptions 
yield  to  proof.11 

§  397.      Whether  Infant  may  make  a  Will.  —  The  age  at  which 


1  Statutes,  for  instance,  which  ar- 
rest for  begging  on  the  streets,  gather- 
ing garbage  from  the  markets,  etc. 
There  are  various  penal  statutes  which 
provide  for  sending  young  children 
who  are  found  offenders,  to  the  house 
of  refuge  or  some  similar  institution 
for  youth.  101  N.  Y.  195  ;  76  Me.  324 ; 
66  How.  Pr.  178. 

2  People  v.  Kendall,  25  Wend.  399. 

3  Dove  v.  State,  .'57  Ark.  261.  Infant 
responsible  for  larceny  as  bailee.  15 
Q.  I'-.  1).  323. 

4  Chandler  v.  Commonwealth,  4  Met. 
(Ky.)  fir,. 

«  See  t  III.  Com.  2.'5,  24;  1  Pish. 
Crim,  Paw,  §  464,  and  cases  cited; 
State  p.  Barton,  71  Mo.  288j  .Martin  v. 
State   (1891),    Ala. 

,;  Willi  t  v  Commonwealth,  13  Hush, 
230. 

040 


7  People  v.  Townsend,  3  Hill,  479. 

8  See  4  HI.  Com.  24;  Common- 
wealth v.  Mead,  10  Allen,  398  ;  Stephen- 
son v.  State,  28  Ind.  272  ;  State  v.  Tice, 
90  Mo.  112.  As  to  recognizance  to 
answer  for  criminal  offence,  see  State 
v.  Weatherwax,  12  Kan.  463.  Where  a 
minor  is  imprisoned  under  an  illegal 
sentence,  the  proper  remedy  is  by 
habeas  corpus,  and  not  annulment  of 
the  sentence.  Cathing  v.  State,  02  Ga. 
243. 

9  State  v.  Hillon,  1  Head,  389. 

10  Such  as  infanticide,  cruelty  to 
children  (which  certain  societies  seek 
to  suppress),  and  corruption  of  morals. 
See  58  N.  H.  475  ;  67  Ga.  29  ;  77  Mo. 
103;  107  Ind.  483;  99  N.  Y.  204;  61 
Cum.  50. 

11  §  428. 


CHAT.  I. J    THE   GENERAL   DISABILITIES   OF   INFANTS.       §  397 

persona  may  dispose  of  their  property,  real  or  personal,  by  last 
will  and  testament,  is  now  determined  by  statute  in  England, 
and  in  most  parts  of  the  United  States.  In  England  the  modern 
statute  1  Vict.  c.  26,  §  7,  provides  that  no  will  made  by  any 
person  under  the  age  of  twenty-one  years  shall  be  valid.  This 
went  into  effect  in  1838.1  And  the  provisions  of  this  statute 
have  been  substantially  enacted  either  before  or  since  in  most 
of  the  American  States ;  so  that  the  policy  of  the  present  day 
may  be  said  to  exclude  the  testamentary  capacity  of  all  infants.2 
Nor  is  this  unjust;  for  the  law  itself  draws  up  as  good  a  will 
for  children  as  they  are  likely  to  make  for  themselves. 

But  the  ancient  rule  was  otherwise :  namely,  to  the  effect 
that  males  at  fourteen  and  females  at  twelve  might  make  wills 
of  their  personal  property  ;  thus  conforming  to  the  older  rule 
of  the  civil  and  canon  law.3  And  fourteen,  as  we  have  seen, 
was  the  age  when  a  guardian  by  election  of  the  infant  might  be 
appointed.4  But  though  no  objection  was  admissible  to  the 
probate  of  wills  in  the  ecclesiastical  courts,  merely  for  want  of 
age,  yet  if  it  could  be  shown  that  the  testator  was  not  of  suffi- 
cient discretion,  whether  of  the  age  of  fourteen,  or  four-and- 
twenty,  that  would  overthrow  the  testament.5  This  always 
operated  to  discourage  such  wills  from  being  made.  And  yet 
the  objection  was  not  insuperable ;  for  there  is  a  clear  instance 
on  record  where  an  infant  sixteen  years  of  age  made  a  testament 
in  favor  of  his  guardian  and  schoolmaster,  which  was  established 
by  evidence  of  the  child's  capacity  and  free  will.6 

The  English  text  writers,  with  reference  to  the  old  law,  have 
laid  it  down  that  express  approval  of  a  former  will  after  the 
infant  had  accomplished  the  years  of  fourteen  or  twelve  would 
make  it  strong  and  effectual.7  But  as  concerns  the  later  stat- 
utes, if  not  as  a  general  principle  for  modern  times,  it -appears 

1  See  also  20  &  21  Vict.  c.  77.  4  See  §§  289,  301. 

2  Schouler,  Wills,  §§  39-43  ;  4  Kent,  5  2  Bl.  Com.  497 ;  1  Wms.  Ex'rs, 
Com.  506,  507.  15. 

3  1  Wms.  Ex'rs,  15  ;  Schouler,  Wills,  6  Arnold  v.  Earle,  2  Cas.  temp.  Lee, 
§§  40,  41.     But  there  are  some  irrecon-  529. 

cilable   opinions   on  the  subject  to  be  "  1   Wms.  Ex'rs,  16  ;  Swinb.   pt.  2, 

found  in  the  old  books.     See  Co.  Litt.     §  2,  pi.  7 ;  Bac.  Abr.  Wills,  B. 
89  b,  Hargrave's  note. 

41  641 


§  398  THE   DOMESTIC   RELATIONS.  [PART   V. 

pretty  clear  that  where  a  will  is  required  to  be  in  writing,  and 
executed  before  witnesses,  in  order  to  be  valid,  and  is  thus  exe- 
cuted before  the  testator  arrives  at  the  required  age,  it  cannot 
be  rendered  valid  after  the  testator  arrives  at  such  age,  except 
by  republication  with  all  the  usual  formalities.1  And  even  the 
old  books  admit  that  the  mere  circumstance  of  an  infant  having 
lived  some  time  after  the  age  when  he  became  capable  of  mak- 
ing a  will  cannot  alone  give  validity  to  one  made  during  his 
incapacity.2 

The  maxims  of  the  older  law  on  this  subject  adhere  some- 
what to  American  jurisprudence  ;  for  we  find  that  in  a  few  of  our 
States  a  distinction  is  still  made  between  personal  and  real  estate 
as  to  the  right  of  an  infant  to  dispose  of  his  property  by  will.3 

§  398.  Testimony  of  Infants.  —  Infants  may  be  admitted  to 
testify  in  the  courts,  if  of  sufficient  understanding.  There  is  no 
precise  age  at  which  the  law  excludes  them  on  the  conclusion 
that  they  are  mentally  and  morally  incompetent;  but  one's  com- 
petency in  any  case  will  depend  upon  his  actual  intelligence, 
judgment,  understanding,  and  ability  to  comprehend  the  nature 
and  effect  of  a  solemn  statement  under  oath  as  distinguished  from 
falsehood.  By  the  common-law  rule,  every  person  over  the  age 
of  fourteen  is  presumed  to  have  common  discretion  and  under- 

1  Sehouler,  Will?,  Part  IV.  c.  3.  New  Jersey,  Kentucky,  Virginia,  Penn- 

2  Herbert  v.  Torball,  1  Sid.  162;  sylvania,  Delaware,  and  Michigan.  For 
Swinb.  pt.  2,  §  2,  pi.  5  ;  1  Wms.  Fx'rs,  latest  changes  see  Stimson,  American, 
16.  Formerly,  as  we  have  seen,  a  Statute  Law.  In  some  States  a  dis- 
father,  though  a  minor,  might  appoint  tinction  is  made  between  males  and 
a  testamentary  guardian  of  his  own  females  as  to  testamentary  capacity, 
child;  but  this  right  also  is  taken  from  and  the  latter  may  make  wills,  as  in 
a  minor  father,  under  the  modern  stat-  Vermont  and  Maryland,  at  eighteen, 
ute  of  wills.     1  Vict.  c.  26  ;  see  §  287.  In  New  York  and  Illinois  the  principle 

:i  Thus  in  Rhode   Island,  Virginia,  is  to  discriminate  between  real  and  per- 

Arkansas,    and    Missouri,    the    agre    for  sonal    estate,   and   between    males    and 

making  wills  of  real  estate  is  fixed  at  females;   and   while  as  young  as  six- 

twenty-one,  and  for  disposing  of  person-  teen  a  female  in  the  former  State  may 

aliv  in    the  same  manner  at  eighteen  :  make  a  valid  will  of  personalty,  hut  a 

and  in   Connecticut   al  twenty-one  for  male  only  at  eighteen.     Sec  Schouler, 

real  estate,  and  seventeen  for  personalty.  Wills,  $4.'i;   4  Kent,  Com.  506,  507; 

Among  the  States   where  the  right  to  Williams  v.  Heirs,  Busbee,  271 ;  Davis 

dispose  of   estate,   both   real  and   per-  v.    Baugh,   1    Sneed,   477;    Moore    ?•. 

sonal,   is    now  limited    to    persons    of  Moore,  23  Tex.  637  :  Posey  v,  Posev, 

full  age,  are  Massachusetts,  Vermont,  3  Strohh.  167;  Corrie's  Case,  2  Bland. 

..'  ..  [Hampshire,  Maine,  Ohio,  Indiana,  Ch.  488. 
G42 


CHAP.  I.]    THE   GENERAL   DISABILITIES    OF    INFANTS.        §  398 

standing  until  the  contrary  appears ;  but  under  that  age  it  is 
not  so  presumed;  and  the  court  will  therefore  make  inquiry  as 
to  the  degree  of  understanding  which  the  child  offered  as  a  wit- 
ness may  possess.  But  this  preliminary  examination,  which  is 
made  by  the  judge  at  discretion,  is  to  be  directed  to  the  point 
whether  the  witness  comprehends  the  solemn  obligation  of  an 
oath;  and  if  the  child  appears  to  have  sufficient  natural  intelli- 
gence to  distinguish  between  good  and  evil,  and  to  comprehend 
the  nature  and  effect  of  an  oath,  he  is  an  admissible  witness.1 
In  Indiana  a  statute  provides  that  all  children  over  the  age  of 
ten  shall  be  presumed  to  be  competent.  And  in  various  States 
a  child  nearly  ten  years  of  age  has  been  deemed  competent  to 
testify,  whose  answers  when  she  was  examined  by  the  court 
disclosed  that,  though  she  was  ignorant  of  the  nature  of  the 
punishment  for  false  swearing,  yet  she  comprehended  the  obli- 
gations of  an  oath  and  believed  that  any  deviation  from  the 
truth,  while  under  oath,  would  be  followed  by  appropriate  pun- 
ishment.2 Less  expression  even  than  this  has  been  required 
of  children  about  this  age,  where  the  due  comprehension  ap- 
peared, notwithstanding  nervous  agitation  natural  to  the  sur- 
roundings.3 Of  the  capacity  of  such  witnesses  for  comprehending 
the  matter  as  to  which  they  testify,  of  the  strength  of  the 
memory,  and  in  general  as  to  the  weight  which  may  be  attached 
to  their  testimony  in  any  particular  state  of  facts,  a  jury  should 
make  its  estimate  carefully.4 

Children  have  been  admitted  to  testify  at  the  early  age  of 
seven,  and  even  of  five;5  but  the  dying  declarations  of  a  child 
only  four  years  old  were  once  ruled  out,6  for  the  reason  that, 

1  Greenl.  Evid.  §  367;  2  Russ.  4  Competence  to  testify  is  not  in- 
Crimes,  590;  Rex  v.  Brazier,  1  East,  consistent  with  civil  immunity  at  such 
P.  C.  443  ;  State  >\  Whittier,  21  Me.  an  age  for  perjury.  Johnson  v.  State, 
341.  Nor  is  a  court  of  appeal  disposed  61  Ga.  35.  See  Peterson  v.  State,  47 
to  overrule  the  discretion  of  the  judge  Ga.  524. 

at  the  trial  below  who  makes  this  ex-  5  Ih.     Female  child  of  eight  held  a 

amination,   unless    the   discretion    was  competent  witness  in  prosecution  for  a 

plainly  abused.     79  Hun,  23.  criminal   assault   upon   her.     Wade   v. 

2  Blackwell  v.  State,  11    Ind.    196;  State,  50  Ala.  164. 

Draper  v.  Draper,  68  111.  17  ;  Vincent  6  Rex  v.  Pike,  3  Car.  &  P.  598 ;  Rex 
v.  State,  3  Heisk.  120.  v.  Brazier,  1  East.  P.  C.  443. 

3  Davidson  v.  State,  39   Tex.  129; 
State  v.  Scaulan,  58  Mo.  204. 

643 


398 


THE   DOMESTIC    RELATIONS. 


[PART  V. 


however  precocious  the  child's  mind,  she  could  not  have  had 
that  idea  of  a  future  state  which  is  necessary  to  make  such 
declarations  admissible.1  Different  systems  of  religious  edu- 
cation render  the  judicial  test  in  this  respect  far  from  precise ; 
for  while  there  are  cases  where  the  court  has  put  off  a  trial,  in 
order  to  specially  instruct  an  infant  witness  as  to  the  nature 
and  solemnity  of  an  oath,  this  practice  is  not  of  late  years 
strongly  countenanced  ;  the  opinion  gaining  ground  that  the 
effect  of  the  oath  upon  the  conscience  should  arise  from  reli- 
gious feelings  of  a  permanent  nature  and  gradual  growth.2  But 
in  cases  where  the  intellect  is  sufficiently  matured,  and  the  edu- 
cation only  has  been  neglected,  it  appears  that  a  postponement  of 
the  trial  might  properly  be  asked.3  Where  a  young  child's  ex- 
amination shows  an  utter  want  of  anything  like  a  knowledge  of 
the  nature  or  character  and  consequences  of  an  oath,  or  of  human 
relations  to  God  and  the  Divine  penalties  denounced  against  false 
swearing,  the  child  ought  not  to  be  allowed  to  testify.4 


1  Rex  v.  Pike,  3  Car.  &  P.  598.  And 
see  Rex  v.  Brazier,  1  East  P.  C.  443  ; 
1  Greenl.  Evid.  §  367 ;  Commonwealth 
v.  Hutchinson,  10  Mass.  225. 

2  Rex  v.  White,  2  Leach  C.  C.  48, 
». ;  1  Greenl.  Evid.  §  367  ;  Rex  v.  Wil- 
liams, 7  Car.  &  P.  320 ;  Regina  v. 
Nicholas,  2  Car.  &  K.  246. 

8  Per  Pollock,  C.  B.,  Regina  v.  Nicho- 
las, 2  Car.  &  K.  246.  A  child  is  not  in- 
competent to  testify  because  instructed 
hy  a  minister  concerning  the  nature  of 
an  oath  between  the  first  day,  when 
offered,  and  the  next,  when  permitted  to 
testify.  Commonwealth  v.  Lynes,  142 
Mass.  577. 

With  regard  to  the  weight  and  ef- 
Eecl  of  the  testimony  of  children,  Black- 
Btone  observes  that  when  the  evidence 
of  children  is  admitted,  "  it  is  much  to 
be  wished,  in  order  to  render  the  evi- 
dence credible,  that  there  should  he 
somi  concnrrenl  testimony  of  time, 
place,  and  circumstances,  in  order  to 
make  out  the  fact;  and  that  a  con- 
viction should  uot  be  grounded  on  the 
unsupported    accusation    of   an   infant 

mid'  i   wars  of  discretion."     4  Bl.  Com. 

G44 


214.  To  this  Mr.  Phillips  replies  that 
in  many  cases,  undoubtedly,  the  state- 
ments of  children  are  to  be  received 
with  great  caution  ;  vet  that  a  prisoner 
may  be  convicted  upon  such  testimony 
alone  and  unsupported  ;  and  that  the 
extent  of  corroboration  necessary  is  a 
question  exclusively  for  a  jury.  It 
may  be  observed  that  the  preliminary 
inquiry  as  to  the  competency  is  not  al- 
ways of  the  most  satisfactory  descrip- 
tion, and  is  such  that  a  child  might, 
upon  slight  practising  of  the  memory, 
appear  well  qualified.  The  severest 
test  appears  in  the  examination  which 
follows ;  and  as  Mr.  Phillips  well  con- 
cludes: "  Independently  of  the  sanction 
of  an  oath,  the  testimony  of  children, 
after  they  have  been  subjected  to 
cross-examination,  is  often  entitled  to 
as  much  credit  as  that  of  grown  per- 
sons'; what  is  wanting  in  the  perfec- 
tion of  the  intellectual  faculties  is 
sometimes  more  than  compensated  by 
the  absence  of  motives  to  deceive."  1 
Phil.  Evid.  9th  ed.  6,  7. 

4  See  Beason  v.  State,  72  Ala.  191 ; 
State  v.  Belton,  24  S.  C.  185. 


CHAP.  I.]    THE   GENERAL   DISABILITIES   OF    INFANTS.       §  399 

On  the  principle  that  chancery  is  bound  to  see  that  an  infant 
litigant's  rights  and  interests  are  protected,  not  only  is  an  un- 
willing infant  not  compellable  to  testify  in  his  suit,  but  his 
deposition,  though  given  freely  on  his  part,  may  be  suppressed, 
at  the  discretion  of  the  court,  as  containing  admissions  unfavor- 
able to  his  cause.1 

§399.  Marriage  Settlements  of  Infants.  —  With  respect  to 
the  marriage  settlement  of  infants,  there  was  formerly  consid- 
erable controversy.  For,  on  the  one  hand,  it  was  urged  that 
infants  were  in  general  incapable  of  entering  into  valid  con- 
tracts with  respect  to  their  property ;  on  the  other,  that  since 
infants  might  make  a  valid  contract  of  marriage,  they  ought 
to  be  able  to  arrange  the  preliminaries.  At  an  early  period 
the  opinion  prevailed  in  England  that  the  marriage  considera- 
tion communicated  to  the  contracts  of  infants,  respecting  their 
estate,  an  efficacy  similar  to  that  which  the  law  stamps  upon 
marriage  itself ;  and  Lords  Hardwicke  and  Macclesfield  con- 
tributed to  strengthen  it,  by  maintaining  that  the  real  estate 
of  an  infant  would  be  bound  by  a  marriage  settlement.2  Lord 
N~orthington  held  later  to  a  different  opinion ;  and  Lord  Thur- 
low  overturned  the  doctrine  altogether,  boldly  declaring  that 
the  contracts  of  male  and  female  infants  do  not  bind  their 
estates,  and  that  consequently  a  female  infant  cannot  be  bound 
by  any  articles  entered  into  during  minority,  as  to  her  real 
estate;  but  may  refuse  to  be  bound,  and  abide  by  the  interest 
the  law  casts  upon  her,  which  nothing  but  her  own  act  after 
the  period  of  majority  can  fetter  or  affect.3  Other  distinguished 
equity  jurists,  including  Lord  Eldon,  subsequently  expressed 
their  approval  of  Lord  Thurlow's  decision.4  And  the  rule  be- 
came settled  within  the  next  fifty  years,  that  the  real  estate  of 
a  female  infant  was  not  bound  by  the  settlement  on  her  mar- 

1  Serle  v.  St.  Eloy,  2  P.  Wins.  386  ;  3  Drury  v.  Drury,  2  Eden,  58  ;  Durn- 
Napier  v.  Effingham",  2  P.  Wms.  403;  ford  v.  Lane,  1  Bro.  C.  C.  115;  Clough 
Moore  v.  Moore,  4  Sandf.  Ch.  37.     But     v.  Clough,  5  Ves.  716. 

see  Walker  v.   Thomas,  2  Dick.   781  ;  *  See  Peachey,  Mar.  Settl.  28 ;  Mil- 
Bennett  v.  Welder,  15  Ind.  332.  ner   v.  Lord    Harewood,   18  Ves.  275; 

2  Harvey  v.  Ashley,  3  Atk.  607  ;  Caruthers  v.  Caruthers,  4  Bro.  C.  C 
Cannel    v.    Buckle,   2   P.    Wms.   243 ;  509. 

Peachey,  Mar.  Settl.  25  et  seq. 

645 


§  399 


THE   DOMESTIC    RELATIONS. 


[PART    V. 


riage,  because  her  real  estate  does  not  become  by  the  marriage 
the  absolute  property  of  the  husband,  although  by  the  marriage 
he  takes  a  limited  interest  in  it.1  So  was  it  decided  that  neither 
the  approbation  of  the  parents  or  guardians,  nor  even  of  the 
court  of  chancery,  independently  of  positive  statute,  would  make 
the  infant's  settlements  binding.2  The  inconvenience  of  such  a 
state  of  things  called  for  statute  remedy;  and  in  1S55  an  act 
was  passed  which  enabled  male  infants  not  under  twenty,  and 
female  infants  not  under  seventeen,  with  the  approbation  of 
the  court  of  chancery,  to  make  valid  settlements  of  all  their 
property,  real  or  personal,  and  whether  in  possession,  reversion, 
remainder,  or  expectancy.3  The  statute  has  already  received 
some  interpretation  in  the  courts ;  and  so  much  in  favor  was  it, 
that  almost  immediately  upon  its  passage  it  was  acted  upon  in 
chancery.  Under  this  statute  settlements  have  been  upheld 
even  where  infant  wards  married  in  contempt  or  defiance  of 
court ;  and  a  settlement  may  be  made  on  the  occasion  of  an  in- 
fant's marriage  after  the  marriage  has  actually  taken  place.4 
But  aside  from  the  operation  of  such  a  statute,  an  infant  who 
becomes  a  party  to  a  marriage  settlement  may  repudiate  it 
within  a  reasonable  time  after  attaining  majority.5 

This  subject  has  received  little  attention  in  the  United  States ; 
notwithstanding  the  plenary  jurisdiction  over  the  estates  and 


1  Simson  v.  Jones,  2  Euss.  &  M.  376 ; 
Campbell  v.  Ingilby,  21  Beav.  567 ;  25 
L.  J.  Eq.  760.  For  summary  of  the 
English  chancery  doctrine,  see  Peachey, 
Mar.  Settl.  37. 

a  Peachey,  Mar.  SettL  53, 54 ;  76.29- 
43,  and  cases  cited  passim  ;  In  re  War- 
ing, 21  L.J.  Eq.  7K4 ;  Simson  v.  Jones, 
2  Rnss.  &  M.  365;  Bortou  v.  Borton, 
If,  Sim.  552;  Field  v.  Moore,  25  L.  J. 
Eq    69;  25  E.  L.  &  Eq.  498. 

■  I-  :  19  Vict.  c.  43.  See  Peachey, 
Mar.  Settl.  45.  For  construction  of 
this  Btatute,  see  ///  re  Dalton,  39  E.  1>. 
&  Eq.  I  I"-  ;  B  c.  6  De  6.  M.  &  G.  201. 
Bui  Bee  /■■    Catherine  Strong,  2  .Jur. 

v    B.  1241  j   ."-  W.    If.    107.      Bach   infant 

may  consent  to  a  proposed    reinvest- 
ment.    In    -   Cardress,  L.  R,  7  Ch.  D. 

728.      "r    i luring    minority  a 

646 


power  which  was  apparently  so  in- 
tended in  trust  settlement.  //;. ;  An- 
drews v.  Andrews,  15  Ch.  D.  228. 

4  Settlement  held  valid  either  under 
the  inherent  jurisdiction  of  chancery 
over  the  property  of  its  wards  or  under 
the  infant's  settlement  act;  and  even 
if  invalid  in  its  inception  it  had  been 
adopted,  confirmed,  and  acquiesced  in 
by  the  infant,  by  various  acts  during 
and  after  her  coverture.  Buckmaster 
v.  Buckmaster,  33  Ch.  D.482.  Andsee 
Sampson  Re,  25  Ch.  I).  482  ;  §  390. 

■'  See  settlement  with  a  covenant  to 
settle  after-acquired  property  thus  repu- 
diated, Edwards  v.  Carter  [1893],  App. 
('.  360.  Same  singular  effects  upon  a 
settlement  follow  the  Married  Women's 
Act,  [1893]  2  Ch.  307.  See  also  44 
Ch.  D.  211. 


CHAP.  I.]   THE   GENERAL   DISABILITIES   OF   INFANTS.    §  399  a 

persons  of  infants  which  a  court  of  equity  is  admitted  to  exer- 
cise in  many  of  our  States.  But  in  New  York  some  decisions 
have  been  made,  of  a  like  tenor  with  those  in  the  English  chan- 
cery. Thus,  in  1831,  that  a  legal  jointure  settled  upon  an 
infant  would  bar  her  dower ;  and,  by  analogy  to  the  statute,  a 
competent  and  certain  provision  settled  upon  the  infant  in  bar 
of  dower,  to  which  there  is  no  objection  but  its  mere  equitable 
quality.1  And  in  1843,  that  a  female  infant  was  not  bound  by 
agreement  to  settle  her  real  estate  upon  marriage.2  So,  in 
Maryland,  a  female'  infant  cannot  bind  her  real  estate  by  her 
marriage  settlement.3 

An  objection  to  the  validity  of  a  marriage  settlement,  on  the 
ground  that  the  parties  to  it  were  infants,  can  only  be  made  by 
the  parties  themselves.  A  trustee  acting  under  it  has  no  such 
power.4  But  since  privies  in  blood  can  avoid  an  infant's  void- 
able conveyance,  it  is  held  that  if  the  infant  dies  after  making 
a  settlement  of  real  estate,  and  without  having  attained  major- 
ity, her  privies  in  blood  may  avoid  the  Settlement.5  There  are 
circumstances  under  which  the  infant's  confirmation  in  part  of 
a  settlement  will  be  taken  as  proof  of  an  intention  to  confirm 
the  whole  of  it.6 

Marriage  articles  are  not  of  themselves  binding  upon  the  in- 
fant or  her  privies  ;  but  they  are  binding  upon  the  adult  hus- 
band.7 Yet  if  the  infant  dies  under  age,  her  privies  cannot  take 
the  benefits  of  the  proposed  settlement  and  of  the  inheritance 
likewise  ;  they  may  have  the  more  beneficial,  and  that  is  all.8 

§  399  a.  Infant's  Exercise  of  a  Power.  —  Where  a  power  is 
given  to  an  infant  in  general  terms  to  direct  a  sale  of  the  infant's 
land,  this  power  canuot  be  exercised  during  infancy  ;  for  a  power 

1  M'Cartee  v.  Teller,  2  Paige,  511.  As  to  settling  a  small  fund  to  the  sepa- 

2  Temple  v.  Hawley,  2  Sandf.  Ch.  rate  use  of  a  chancery  ward  who  mar- 
153.  ries  the   day  after  she  comes   of   age, 

3  Levering  v.  Levering,  .3  Mil.  Ch.  see  White  v.  Herrick,  L.  R.  4  Ch.  345. 
365.     See  Burr  v.  Wilson,  18  Tex.  3G7.  As  to  confirmation,  see  White  v.  Cox, 

4  Jones  v.  Butler,  30  Barb.  641.  2  Ch.  D.  387. 

5  Levering  v.  Levering,  3  Md.  Ch.  "  Brown  v.  Brown,  L.  R.  2  Eq.  481  ; 
365;  Whitingham's  Case,  8  Rep.  42;  Whichcote  v.  Lyle's  Ex'rs,  28  Penn, 
Macphers.  Inf.  465 ;  Brown  v.  Brown,  St.  73. 

L.  R.  2  Eq.  481.  8  Brown  v.  Brown,  ib. 

6  Davies  v.  Davies,  L.  R.  9  Eq.  468. 

647 


§  400  THE   DOMESTIC    RELATIONS.  [PART  V. 

touching  his  own  estate  which  is  thus  intended  should  be  ex- 
plicitly stated.1  But  an  infant  may  exercise  a  naked  power,  un- 
accompanied with  any  interest,  and  requiring  no  exercise  of 
discretion.2 


CHAPTER  II. 


ACTS  VOID  AND  VOIDABLE. 


§  400.  General  Principle  of  Binding  Acts  and  Contracts,  as  to 
Infants.  —  One  leading  principle  runs  through  all  cases  which 
relate  to  infants.  It  is  that  such  persons  are  favorites  of  the  law, 
which  extends  its  protection  over  them  so  as  to  preserve  their 
true  interests  against  their  own  improvidence,  if  need  be,  or  the 
sinister  designs  of  others.  This  principle  is  found  constantly  in 
chancery  practice.  \Ve  have  traced  it  already  in  cases  of  cus- 
tody, control,  and  guardianship,  and  particularly  in  such  as  come 
before  the  American  courts.  It  appears  again  in  matters  of  legal 
emancipation  and  the  minor's  right  to  his  own  wages.  It  gener- 
ally determines  the  result  of  transactions  between  an  infant  and 
his  parent  or  guardian,  where  fraud  and  undue  influence  are 
suspected,  or  in  resulting  trusts  to  preserve  the  child's  property. 
It  is  applied  when  a  guardian  presents  his  accounts  for  allowance. 
We  are  now  to  see  this  same  principle  at  work  in  the  general 
transactions  of  infants,  controlling  and  regulating  them  in  great 
measure,  and  serving  better  than  any  other  to  explain  the  shift- 
ing and  contradictory  decisions  of  the  English  and  American 
courts  on  this  vexed  subject. 

Infancy  is  a  personal  privilege,  allowed  for  protection  against 
imposition.  The  general  rule  of  the  present  day  is  that  an  in- 
fant shall  be  bound  by  no  act  which  is  not  beneficial  to  him.3 
And  most  acts  and  contracts  of  infants  are  divided  into  the  two 
classes  of  void  and  voidable ;  a  third  class  —  namely,  of  binding 

1  Hill  v.  Chirk,  i  Lea,  405.  8  Smith,  Contr.  225;  Met.  Coutr.38, 

*  Jh.  ;    I'irrv,  Trusts.  §  52.  39  ;  2  Kent,  Com.  234. 

048 


CHAP.  II.]  ACTS   VOID   AND   VOIDABLE.  §  401 

acts  and  contracts  —  still  remaining  for  separate  consideration  in 
our  next  chapter. 

§  401.  The  Test  as  to  Void  and  Voidable  ;  Infant's  Transactions. 
—  There  is  much  confusion  in  the  oiler  books  on  the  subject  of 
void  and  voidable  acts  and  contracts.1  The  keenness  with  which 
such  a  distinction  must  always  cut  is  an  objection  to  its  practi- 
cal use  at  the  present  day ;  yet  writers  have  sought  to  adapt  the 
weapon  to  the  infant's  wants.  They  have  searched  for  some  in- 
fallible test  between  void  and  voidable.  Thus  Mr.  Bingham, 
after  a  review  of  the  English  cases,  years  ago,  concluded  that  the 
only  safe  criterion  was,  that  "  acts  which  are  capable  of  being 
legally  ratified  are  voidable  only ;  and  acts  which  are  incapable 
of  being  legally  ratified  are  absolutely  void."  2  But  this  was  only 
to  shift  the  uncertainty,  and  replace  one  difficulty  by  another. 
What  acts  can  be  legally  ratified  and  what  cannot  ?  As  Kent 
properly  observes,  such  a  criterion  does  not  appear  to  free  the 
question  from  its  embarrassment  or  afford  a  clear  and  definite 
test.3  Again,  a  Massachusetts  judge  of  repute  declared,  many 
years  ago,  that  the  books  agree  in  one  result ;  that  whenever  the 
act  done  may  be  for  the  infant's  benefit  it  shall  not  be  considered 
void,  but  he  shall  have  his  election,  when  he  comes  of  age, 
to  affirm  or  avoid  it ;  and  this,  he  adds,  is  the  only  clear  and 
definite  proposition  which  can  be  extracted  from  the  authorities.4 
Even  this  rule,  though  much  better,  is  found  difficult  of  applica- 
tion, and  has  been  pronounced  unsatisfactory  in  some  of  the  later 
cases.5  Besides,  it  is  lacking  in  comprehensiveness  and  scope. 
A  more  precise  and  intelligible  test  than  either  was  that  applied 
in  one  of  the  earlier  English  cases  by  Chief  Justice  Eyre,  and 
cited  since  with  approval  by  Judge  Story  and  Chancellor  Kent :  6 
namely,  that  where  the  court  can  pronounce  that  the  contract  is 
for  the  beuefit  of  the  infant,  as,  for  instance,  for  necessaries,  then 
it  shall  bind  him ;  where  it  can  pronounce  it  to  be  to  his  preju- 

1  See  Shep.  Touch.  232;  Bac.  Abr.  Dutch,  14  Mass.  457.  See  2  Kent,  Com. 
Infancy  and  Age  (I.),  and  cases  cited  in     234  ;  Met.  Contr.  30. 

Zouch  v.  Parsons,  3  Burr.  1794.  5  Met.  Contr.  40;  1  Am.  Lead.  Cas. 

2  Bing.  Inf.  234.  4th  ed.  242. 

8  2  Kent,  Com.  234.  ''  See  United  States  v.  Bainbridge, 

*  Per    Parker,    C.    J.,    Whitney   v.     1    Mason,  82;  2  Kent,  Com.  236;  Mo 

Gan  v.  Marshall,  7  Humph.  121. 

649 


§  401  THE   DOMESTIC   DELATIONS.  [PART  V. 

dice,  it  is  void  ;  and  that  where  it  is  of  an  uncertain  nature,  as  to 
benefit  or  prejudice,  it  is  voidable  only,  and  it  is  in  the  election 
of  the  infant  to  affirm  it  or  not.1  The  doctrine  seems  hardly- 
capable  of  a  closer  analysis  ;  yet  even  this  statement  of  the  legal 
test  is  by  no  means  clear  and  conclusive. 

The  equitable  doctrine  differs  not  from  the  legal  as  to  the 
contracts  of  infants.  In  general,  when  a  contract  is  not  mani- 
festly for  the  benefit  of  an  infant,  he  may  avoid  it,  as  well  in 
equity  as  at  law  ;  and  when  it  can  never  be  for  his  benefit,  it  is 
utterly  void.  Infants  are  favored  in  all  things  which  are  for 
their  benefit,  and  are  saved  from  being  prejudiced  by  anything 
to  their  disadvantage.  For  infants  are  by  law  generally  treated 
as  having  no  capacity  to  bind  themselves,  from  the  want  of 
sufficient  reason  and  discernment  of  understanding.  In  regard 
to  their  acts,  some  are  voidable  and  some  are  void ;  so  in  regard 
to  their  contracts,  some  are  voidable  and  some  are  void.2  The 
liberality  and  freedom  exercised  in  common-law  courts  at  the 
present  day,  in  shaping  general  doctrines  with  reference  to 
infants  and  their  contracts,  must  be  ascribed  in  a  large  degree  to 
the  influence  of  the  equity  tribunals  and  their  decisions.  "  In 
short,"  as  Judge  Story  observes,  "  the  disabilities  of  an  infant  are 
intended  by  law  for  his  own  protection,  and  not  for  the  protec- 
tion of  the  rights  of  third  persons  ;  and  his  acts  may  therefore, 
in  many  cases,  be  binding  upon  him,  although  the  persons,  under 
whose  guardianship,  natural  or  positive,  lie  then  is,  do  not  assent 
to  them."  3  Where  the  contract  is  voidable,  not  void,  the  infant 
lias  his  election  to  avoid  it  either  during  his  minority  or  within 
a  reasonable  time  after  he  attains  majority  ;  otherwise,  it  is  taken 


1  Keane  v.   Boycott,   2   H.  Bl.  511.  "void"  may  mean  incapable  of  being 

Ami  see.  Green   v.  Wilding,  59    Iowa,  enforced;  and  the  plea  of  infancy  is  a 

679.     The    rale   is    that  contracts  of  liar  to  any  demand  on  one  contract  as 

an   infant,  caused  by  hie  necessities  or  well  as  the  other.     But  "void"  may 

manifestly  for  his  advantage,  are  valid  mean,  too,  incapable  of  being  ratified. 

and  binding,  while  those  manifestly  for  2  1  Story,   Eq.  Juris.  §§  240,  241  ; 

his  hurt  arc   \ « >i<  1 .     Contracts   falling  1  Fonbl.  Eq.  b.  1,  cli.  2,   §  4.     And 

between     these    classes    arc    voidable,  see  Turpin    v.    Turpin,    16    Ohio  St. 

Philpot     '•.    Bingham,    55     Ala.    4.15.  270. 

.  I',,  in  Williams  /•.  Moor,  11    M.  8  United    States    v.    Bainbridge,   1 

&  \\   256,  264,  alludes  to  the  uncertain  Mason,  83. 
sen-.;   of   the  word   "void."     The  word 

650 


CHAP.  II.]  ACTS    VOID    AND    VOIDABLE.  §  402 

to  have  been  confirmed,  and  so  binds  him  forever,  since  he  be- 
came capable,  when  an  adult,  of  confirming  it. 

§  4l)2.  Privilege  of  avoiding  is  Personal  to  Infant  ;  Rule  as  to 
Third  Persons,  &c.  —  The  privilege  of  avoiding  his  acts  or  con- 
tracts, where  these  are  voidable,  is  a  privilege  personal  to  the  in- 
fant, which  no  one  can  exercise  for  him,  except  his  heirs  and 
legal  representatives.1  Hence  the  other  contracting  party  remains 
bound,  though  the  infant  be  not ;  for  being  an  indulgence  which  the 
law  allows  infants,  to  secure  them  from  the  fraud  and  imposition 
of  others,  it  can  only  be  intended  for  their  benefit,  and  is  not 
to  be  extended  to  persons  of  the  years  of  discretion,  who  are 
presumed  to  act  with  sufficient  caution  and  security.2  And  were 
it  otherwise,  this  privilege,  instead  of  being  an  advantage  to  the  in- 
fant, would  in  many  cases  turn  out  greatly  to  his  detriment.  Being 
thus  personal,  the  defence  of  infancy  does  not  go  to  any  stranger. 

Thus,  where  a  person  of  full  age  promises  to  marry  a  minor  and 
afterwards  breaks  off  the  match,  he  may  be  sued  by  the  minor 
upon  this  contract ;  though  he  would  have  had  no  corresponding 
remedy  against  the  minor  for  breach  of  promise.3  So  a  third 
person,  not  a  party  to  the  contract  or  transaction,  cannot  take 
advantage  of  the  infancy  of  the  parties.  Thus,  in  an  action  for 
seducing  a  servant  from  his  master's  service,  the  defendant  can- 
not justify  on  the  ground  that  the  servant  was  an  infant,  and 
therefore  not  by  law  bound  to  perform  his  contract  for  service 
made  with  the  master.4  On  the  same  principle  (connected  with 
others),  the  acceptor  of  a  bill  of  exchange,  or  the  maker  of  a 
promissory  note,  cannot  resist  payment  in  a  suit  by  an  indorsee, 
though  the  indorser  be  an  infant.5     Nor  can  the  purchaser  at  a 


1  United  States  v.  Bainbridge,  1  of  the  bailor's  minority,  without  deliver- 
Mason,  83  ;  Keane  v.  Boycott,  2  H.  Bl.  ing  the  goods  to  him.  Stiff  v.  Keith, 
511;    Met.   Contr.  38 ;    Smith,   Contr.  143  Mass.  2:24. 

231  ;  Harvey  v.  Briggs,  68  Miss.  60.  3  Holt  v.  Ward,  2  Stra.  937 ;  Harvey 

2  Bac.  Abr.  Inf.  I.  4;  1  Pars.  Contr.  v.  Ashley,  3  Atk.  610;  Hunt  v.  Peake, 
275;  Johnson  v.  Rockwell,  12  Ind.  76;  5  Cow.  475;  Willard  v.  Stone,  7  Cow. 
Ilartness  v.  Thompson,  5  Johns.  160;  22;  Warwick  v.  Cooper,  5  Sneed,  659; 
Brown  v.  Caldwell,  10  S.  &  R.  114.  Cannon  v.  Alsbury,  1   Marsh.  7S  ;  Rush 

A  contract  of  bailment  made  by  the  v.  Wick,  31  Ohio  St.  521. 
bailee  with  the  agent  of  an  undisclosed  4  Keane  v.  Boycott,  2  H.  Bl.  511. 

principal,  who  proves  a  minor,  cannot  5  Met.  Contr.  39;  Taylor  v.  Croker, 

be  rescinded  by  the  bailee  on  the  ground 

651 


402 


THE   DOMESTIC    RELATIONS. 


[PART  V. 


sale  under  an  execution  set  up  infancy  to  defeat  prior  transac- 
tions of  the  judgment  debtor.1  Nor  can  the  vendor  avoid  the 
infant's  purchase  on  such  a  ground2  Nor  can  infancy  of  the 
mortgagor  be  set  up  by  one  with  a  junior  lien  to  advance 
his  own  security.3  Nor  is  a  stranger  permitted  to  impeach  the 
conveyance  of  an  infant.4  Nor  can  a  corporation  in  which  an 
infant  owns  stock  reject  his  transfer  of  it.5  Nor  can  an  insur- 
ance company  which  insures  the  property  of  an  infant  repudiate 
its  liability  on  the  ground  that  the  infant  is  not  bound.6  So, 
too,  it  is  the  settled  doctrine  that  infancy  does  not  protect  the 
indorsers  or  sureties  of  an  infant ;  or  those  who  have  jointly 
entered  into  his  voidable  undertakings.  They,  if  of  full  age, 
may  be  held  liable,  though  the  infant  himself  should  escape  re- 
sponsibility.7 Furthermore,  the  copartners  of  an  infant  cannot 
use  his  right  of  avoidance  for  their  own  benefit.8  In  fine,  the 
defence  of  infancy  is  for  the  benefit  and  protection  of  the  infant ; 
and  other  persons  may  not  set  it  up  for  their  own  benefit,  at  all 
events  if  the  contract  be  not  void.9 

But  third  persons  should  be  allowed  to  protect  themselves 
against  incurring  undue  liabilities  on  an  infant's  behalf.  Thus, 
an  officer  selling  property  at  public  auction  is  not  bound  to  ac- 
cept the  bid  of  an  infant.10  And  although  infancy  is  a  personal 
privilege,  yet  the  administrator  of  the  estate  of  an  infant  may 
avail  himself  of  the  infancy  of  his  intestate,  to  avoid  or  uphold  a 


4  Esp.  187;  Nightingale  v.  Withington, 
15  Mass.  273  ;  Hardy  v.  Waters,  38  Me. 
450;  Frazier  v.  Masse y,  14  Ind.  382. 

1  Alsworth  v.  ('unit/.,  31  Miss.  32. 

2  Oliver  v.  Houdlet,  13  Mass.  237. 
A  gale  to  an  infant  is  a  valid  transfer  of 
the  property  out  of  the  vendor,  even 
though  the  infant  be  not  bound  after- 
wards   to    pay    the    stipulated    price. 

es  v.  Day,  1  Bail.  320.  Where  a 
minor  agrees,  as  the  consideration  of 
the  conveyance  of  land,  to  pay  certain 
of  the  grantor,  and  afterwards 
does  in  fact  pay  them,  it  is  held  that 
tin:  agreement  constitutes  a  valuable 
consideration  fur  such  conveyance,  and 
will    support    it,  against  the  grantor's 

652 


creditors.     Washband  v.  Washband,  27 
Conn.  424. 

3  Baldwin  v.  Rosier,  48  Fed.  810. 

4  Dominick  v.  Michael,  4  Sandf.  374. 

5  Smith  v.  Railroad,  91  Tenn.  221. 

6  Monaghan  v.  Fire  Ins.  Co.,  53 
Mich.  238. 

7  Motteaux  v.  St.  Aubin,  2  Black, 
1133;  Jaffray  v.  Fretain,  5  Esp.  47; 
llartness  v.  Thompson,  5  Joints.  160; 
Parker  v.  Baker,  1  Clarke  Ch.  (N.  Y.) 
136;  Taylor  v.  Danshy,  42  Mich.  82. 

H  Brown  v.  Hartford  Ins.  Co.,  117 
Mass.  47!»;  Winchester  v.  Thayer,  129 
Mass.  129. 

'•'  Beardsley  v.  Hotchkiss,  96  N.  Y. 
201,  a  case  of  marriage  settlement. 
11   Kinney  <\  Showdy,  1  Hill,  544. 


CHAP.  II.]  ACTS    VOID   AND    VOIDABLE.  §  403 

transaction  to  which  the  latter  was  a  party  during  his  life,  and 
which  remained  voidable  at  his  death.1  And  as  a  rule  the  right 
of  avoidance,  with  due  limitations  of  time  and  circumstances, 
passes  to  privies  in  blood  entitled  to  the  estate ; 2  in  short,  to  his 
heirs  or  legal  representative. 

§  403.  Modern  Tendency  regards  Infant's  Acts  and  Contracts 
as  Voidable  rather  than  Void  ;  Instances  discussed.  —  The  strong 
tendency  of  the  modern  cases  is  to  regard  all  acts  and  contracts  and 
all  transactions  of  infants  as  voidable  only;  and  thus  almost  to 
obliterate  the  ancient  distinction  of  void  and  voidable  contracts 
altogether.3  And  the  dicta  are  of  frequent  occurrence  at  the 
present  day  that  acts  and  contracts  of  an  infant  are  not  abso- 
lutely void,  but  voidable  only,  unless  manifestly  to  the  infant's 
prejudice  ;  and  that  beneficial  contracts  are  only  voidable  at 
most.4  This  makes  all  the  stronger  the  position  already  taken, 
that  an  adult  party  cannot  disaffirm  such  a  transaction. 

Yet  there  are  cases  where  a  contract  may  still  be  pronounced 
absolutely  void.  In  Regina  v.  Lord,  an  English  case,  the  ques- 
tion arose  on  the  conviction  of  a  servant  for  unlawfully  absent- 
ing himself  from  his  master's  employment.  Denman,  C.  J.,  in 
delivering  the  judgment  of  the  court,  observed  :  "Among  many 
objections,  one  appears  to  us  clearly  fatal.  He  was  an  infant  at 
the  time  of  entering  into  the  agreement  which  authorizes  the 
master  to  stop  his  wages  when  the  steam-engine  is  stopped 
working  for  any  cause.  An  agreement  to  serve  for  wages  may 
be  for  the  infant's  benefit;  but  an  agreement  which  compels  him 
to  serve  at  all  times  during  the  term,  but  leaves  the  master  free 
to  stop  his  work  and  his  wages  whenever  he  chooses  to  do  so, 

1  Counts  v.  Bates,  Harp.  464  ;  Par-  See  supra,  §  399.  Devisees  under  a 
sons  v.  Hill,  8  Mo.  135;  Turpin  v.  Tur-  will,  as  strangers  privy  in  estate  only, 
pin,  16  Ohio  St.  270.  cannot    avoid     the     infant's    contract. 

2  Dominick  v.  Michael,  4  Sandf.374;  Bozeman  o.  Browning,  31  Ark.  364. 
Beeler  v.  Bullett,  3  A.  K.  Marsh.  281  ;  8  See  Met.  Contr.  40;  Shaw,  C.  J., 
Nelson  v.  Eaton,  1  Redf.  (N.  Y.  Sur.)  in  Reed  v.  Batchelder,  1  Met.  559. 
498;  Jefford  v.  Ringgold,  6  Ala.  544;  4  See  Ridgely  r.  Crandall,  4  Md.  435  ; 
Illinois  Land  Co.?'.  Bonner,  75  111.  315;  N.  H.  M.  Fire  Ins.  Co.  v.  Noyea,  32 
Veal  v.  Fortsou,  57  Tex.  482  ;  Sharp  v.  N.  H.  345  ;  Jenkins  v.  Jenkins,  12  Iowa, 
Robertson,  76  Ala.  343;  Harvey  v.  195;  Scott  v.  Buchanan,  11  Humph. 
Briggs,  68  Miss.  60.  And  see  Nolte  468;  Babcock  i;.  Doe,  8  Ind.  110  ;  Irvine 
v.  Libbert,  34  Ind.  163.  The  principle  v.  Irvine,  9  Wall.  617;  Robinson  v 
of  the  text  applies  to  marriage  articles.  Weeks,  56  Me.  102. 

653 


§404 


THE   DOMESTIC    RELATIONS. 


[PART  V. 


cannot  be  considered  as  beneficial  to  the  servant.  It  is  inequit- 
able and  wholly  void."  1  And  conformably  to  such  a  principle, 
a  contract  which  sets  a  minor  child  working  to  pay  off  a  creditor 
of  some  one  else  should  be  pronounced  prejudicial  to  his  interest 
and  void,  when  the  wages  that  ought  to  be  his  own  are  thus 
appropriated.2  In  general  any  transfer  of  an  infant's  real  or 
personal  property  which  cannot  possibly  be  for  his  benefit  and  is 
without  consideration  is  void.3 

§  404.  Same  Subject ;  Bonds,  Notes,  &c.  —  So  an  infant's 
bond  with  penalty  and  for  the  payment  of  interest  is  held  to  be 
void  on  the  ground  that  it  cannot  possibly  be  for  his  benefit.4 
And  a  bond  executed  by  a  minor  as  surety  is  void.5  So  is 
declared  to  be  a  mortgage  of  a  minor's  property  to  secure  her 
husband's  debt.6  The  infant's  promissory  note  as  surety  is  void.7 
And  so  is  said  to  be  a  release  by  a  minor  to  his  guardian,  which 
affords  the  latter  more  protection  than  a  receipt.8  But  in  Ver- 
mont it  was  decided  that  there  is  no  general  rule  exempting  an 
infant  from  paying  interest  as  necessarily  injurious  to  him.9    An 


1  Regina  v.  Lord,  12  Q.  B.  757.  Cf. 
Leslie  v.  Fitzpatrick,  3  Q.  B.  D.  229. 
In  Corn  v.  Matthews  [1893],  1  Q.  B. 
310,  an  apprenticeship  deed  somewhat 
of  this  character  was  refused  enforce- 
ment against  the  minor.  And  see  45 
Ch.  J).  430.  But  see  [1892]  3  Ch.  502; 
Danville  v.  Amoskeag  Co.,  62  N.  H. 
133. 

-  Such  contracts  have  been  consid- 
ered where  the  minor  son  of  a  deceased 
father  undertook  to  pay  his  father's 
debt  by  entering  into  the  creditor's  ser- 
vice; an  undertaking  not  wholly  with- 
out honor,  from  a  family  point  of  view, 
ami  yet  apt  to  be  oppressive  on  the 
other  side,  and  properly  disapproved 
judicially  even  under  mitigating  circum- 
1 1  j  Dube"  v.  Beaudry,  150  Mass. 
448.  such  a  contract  was  fully  executed 
during  minority,  l«ut  the  court  allowed 
the  minor  to  repudiate  on  reaching  full 
age  and  recover.  In  ancient  times,  as  I  he 
curt  remarked,  this  contract  would 
■  en  pronounced  absolutely  void. 

3  Bloomingdale  o,  Chittenden,  74 
Mi-!,.  698;    Robinson    v.   Coulter,  90 

054 


Tenn.  705 ;    Person  v.   Chase,   37  Vt. 
647 ;  Oxley  v.  Tryon,  25  Iowa,  95. 

4  Baylis  v.  Dineley,  3  M.  &  S.  477  ; 
Fisher  v.  Mowbray,  8  East,  330. 

5  Allen  v.  Minor,  2  Call,  70;  Met. 
Contr.  40;  Carnahan  v.  Allderdice,  4 
Harring.  99.  It  should  naturally  fol- 
low that  an  infant's  undertaking  to  be- 
come bail  for  another  is  void.  Yet  it 
is  lately  held  that  his  indorsement  upon 
a  writ  to  become  bail  for  the  defendant 
is  voidable  only.  Reed  v.  Lane,  61  Vt. 
481. 

6  Chandler  v.  McKinney,  6  Mich. 
217  ;  Cronise  v.  Clark,  4  Md.  Ch.  403. 
See  Colcock  v.  Ferguson,  3  Desaus.  482. 

7  Maples  v.  Wightman,  4  Conn.  376  ; 
Curtin  v.  Patton,  11  S.  &  R.  305  ;  Night- 
ingale v.  Withington,  15  Mass.  272. 
An  assignment  by  way  of  equitable 
mortgage  to  secure  an  infant  who  be- 
comes surety  becomes  inoperative 
when  the  condition  of  the  bond  is  per- 
formed.    23  W.  Va.  100. 

8  Fridge  v.  State,  3  Gill  &  Johns. 
115. 

0  Bradley  v.  Pratt,  23  Vt.  378. 


CHAP.    II.]  ACTS   VOID    AND   VOIDABLE.  §  40-4 

infant's  release  of  his  legacy  or  distributive  share  is  held  to  be 
void  in  Tennessee.1  In  such  cases  an  infant  is  called  upon  to 
become  the  party  to  some  undertaking  substantially  for  the  bene- 
fit of  another,  and  not  for  his  own  profit.  His  indorsement  or 
guaranty  exposes  him  to  a  dangerous  liability,  and  such  acts 
are  held  void.2  The  construction  of  a  local  statute  will  in  some 
cases  determine  that  an  instrument  is  void,  not  voidable.3  An 
infant's  stock  speculations  on  margin  have  been  declared  in  the 
nature  of  a  wager  contract  and  void.4  And  an  assignment  by 
the  infant  in  trust  for  the  benefit  of  creditors  is  held  in  New 
York  void  and  not  voidable.5 

Now  it  is  admitted  that  the  decisions  are  frequently  contra- 
dictory and  uncertain ;  yet  these  cases  of  void  contracts  almost 
invariably  proceed  upon  the  doctrine  that  the  infant's  act  was 
positively  prejudicial  to  his  interest ;  and  certainly,  if  any  con- 
tract can  be  so  pronounced  on  mere  inspection,  it  is  a  contract 
whereby  an  infant  becomes  bound  upon  another's  debt  or  dis- 
ability. The  technical  form  of  the  transaction  is  of  less  importance. 
There  are  many  cases  where  an  infant's  bonds,  mortgages,  and 
promissory  notes  have  been  held  not  void,  but  under  the  cir- 
cumstances of  the  case  voidable  only ;  as  where  given  in  ordi- 
nary transactions  which  may  possibly  prove  beneficial  with 
relation  to  the  minor's  property.6  And  reference  to  the  latter 
cases  will  show  that  the  modern  rule  is  broadly  announced  in 
many  States,  that  an  infant's  promissory  note,  his  statutory 
recognizance,  and  his  mortgage,  whether  of  real  estate  or  chattels, 
are  all  voidable,  rather  than  void  in  general.7     Even  an  infant's 

1  Langford  v.  Frey,  8  Humph.  443.  penter,    17    "Wend.   419;    Monumental, 

2  Margrett,  Ex  parte,  [1891]  1  Q.  B.  &c.  Association  v.  Herman,  33  Md.  128  ; 
413  ;  and  this,  however  valuable  be  the  Dubose  v.  Wheddon,  4  M'Cord,  221  ; 
consideration.     lb.  Little    v.    Duncan,    9    Bieh.    55.     See 

:i  Hoyt  v.  Svvar,  53  111.  134.  Adams  v.  Boss,  1  Vroom  (N.  J.),  505; 

4  Buchizky  v.  De   Haven,  97  Penn.  Kempson  v.  Ashall,   L.  B.   10  Ch.  15; 

St.  202.  Garin  v.   Burton,  8  Ind.  69.     But  see 

6  Yates  v.  Lyon,  61  Barb.  205.  M'Minn  v.  Bichmond,  6  Yerg  9;  Beeler 

6  State  v.   Plaisted,  43   N.   H.  413;  v.  Young,  1  Bibb,  519. 
Bichardson    v.    Boright,    9    Vt.    368;  7  See    e.  g.   Goodsell    v.    Myers,   3 

Palmer  v.  Miller,  25  Barb.  399;  Beed  Wend.  479  ;  Beed  v.  Batchelder,  1  Met. 

v.  Batchelder,  1  Met.  559;  Patchkin  v.  559;  Patchkin  v.  Cromack,  13  Vt.  330; 

Cromack,  13  Vt.  330;  Conroe  v.  Bird-  State  v.  Plaisted, 43  N.  II.  413.  andjeasea 

Ball,  1  Johns.  Cas.  127;  Everson  v.  Car-  cited;  Palmer  v.  Miller,  25  Barb.  399; 

G55 


§  405  THE   DOMESTIC   RELATIONS.  [PART  V. 

contract  as  surety  or  indorser  has  lately  been  pronounced  void- 
able and  not  void  in  numerous  iustances.1  This  we  conceive  to 
be  the  reasonable  view  of  the  subject ;  the  rule  of  voidable, 
rather  than  void,  applying  wherever  the  transaction  was  uot 
from  its  very  nature  such  as  could  be  pronounced  prejudicial  to 
the  infant's  interest,  but  might  under  some  conditions  be  in  a 
sense  for  his  personal  benefit. 

§  405.  Same  Subject;  Deeds,  &c.  Rule  of  Zouch  v.  Parsons. 
—  It  is  true,  however,  that  the  decisions  are  not  invariably 
placed  by  the  court  upon  such  a  ground.  The  rule  of  Perkins, 
which  was  adopted  by  the  Court  of  King's  Bench  in  the  cele- 
brated case  of  Zouch  v.  Parsons,  is  that  all  deeds  of  an  infant 
which  do  not  take  effect  by  delivery  of  his  hand  are  merely 
void,  and  all  such  as  do  take  effect  by  delivery  of  his  hand  are 
voidable.  For  in  the  one  case  an  interest  is  conveyed,  in  an- 
other a  mere  power.2  This  case  has  come  down  as  authority  for 
all  future  times  ;  and  the  rule  has  frequently  been  cited  with 
approval,  in  support  of  mortgages,  bonds,  and  deeds  being  as 
voidable  only,  in  contrast  with  deeds  delegating  a  mere  power 
to  sell  or  encumber,  which  are  void.  But  we  question  the  pro- 
priety of  its  modern  application  as  a  principle,  however  useful 
in  describing  an  incident.  So  manual  delivery,  it  was  said, 
must  accompany  the  sale  of  an  infant's  personal  property  in 
order  to  render  it  valid.3  The  real  reason  of  such  a  rule  might 
have  been  that  solemn  instruments  and  transactions  of  grave 
importance  ought  not  to  be  lightly  entered  upon,  or  be  made 

Mustard   v.  Wohlford,   15   Gratt.   329.  See,  as  to  assignee  of  an  infant's  mort- 

Whether  an  infant's  own  statutory  recog-  gage,  20  Neb.  185. 
nizance  in  a  criminal  proceeding  may         l  Owen   v.   Long,   112   Mass.    403; 

not  be  more  than  voidable,  t.  e.  binding,  Hardy  v.  Waters,  38  Me.  450;  Harner 

see  next   chapter;   State   v.    Weather-  v.  Dipple,  31   Ohio  St.  72;   Fetrow  v. 

wax,   12   Kan.  403;  Losey  v.  Bond,  94  Wiseman,    40   Ind.    148;    Williams  v. 

Ind.  67;  21    Neb.  559;  Catlin  v.   Mad-  Harrison,  11  S.  C.  412.     And  see  Reed 

dox,  49  Conn.  492;   Hoyt  v.  Wilkinson,  v.  Lane,  61  Vt.  481. 
57    Vt.  4<i4.     No  recovery  can   be  had  -  Perkins,  §    12;  Zouch  v.  Parsons, 

On  a  note  given   by  an   infant  for  what  3  Purr.   1804;  Bool  V.  Mix,  17  Wend. 

he  does  not  need, — r.  g.  a  buggy  or  131;  2  Kent,  Com.  236,  237,  n. ;  State 

horse,  —  even  by  a  bona  fidi  holder;  the  v.   Plaisted,  43  N.   II.  413;  Conroe  v. 

tuna!  protection  of  a  negotiable  instru-  Binlsall,   1    Johns.   Cas.  127;  81   Tex. 

iiient   taken  when  not  overdue  will  not  644;  136  Penn.  St.  568. 
avail.-    Howard  v.  Simpkins,  70  Ga.  322.  8  Fonda  v.  Van  Home,  15  Wend. 

631. 

656 


CHAP.  II.]  ACTS   VOID   AND   VOIDABLE.  §  405 

effective  in  future ;  but  it  is  clear  that  ere  tlie  present  day  much 
of  the  ancient  veneration  for  parchment  deeds  under  seal  has 
disappeared,  while  the  tendency  is  to  place  real  and  personal 
estate  transactions  on  much  the  same  footing,  distinguishing 
rather  by  the  value  than  the  nature  of  the  property  and  by  the 
consideration  involved.  We  admit,  however,  that  the  common 
law  draws  a  strong  line  of  demarcation  between  real  and  per- 
sonal property  ;  so  that  title  transfer  of  the  former  kind  requires 
far  more  positive  formality  than  that  of  the  latter. 

Now  to  continue.  It  is  held  that  an  infant  may  make  a  void- 
able purchase  and  take  a  voidable  conveyance  of  land ; x  for,  says 
Lord  Coke,  striking  the  legal  principle  with  wonderful  clearness 
for  that  day,  "  it  is  intended  for  his  benefit,  and  at  his  full  age  he 
may  either  agree  thereunto  and  perfect  it,  or,  without  any  cause 
to  be  alleged,  waive  or  disagree  to  the  purchase."  2  For  this 
reason,  rather  than  the  technical  one  just  referred  to,  it  may  be 
said  in  general  that  the  conveyance  of  land  by  a  minor  is  also 
voidable  and  not  void ; 3  though  here  again  the  courts  have  been 
prone  to  cite  the  rule  of  Perkins.  But  the  decided  cases  usu- 
ally presume  that  a  valuable  consideration  has  passed  to  the 
infant,  or  at  least  that  there  is  nothing  prima  facie  prejudicial 
to  him.  Lord  Chancellor  Sugden,  in  1842,  in  Allen  v.  Allen, 
took  occasion  to  review  Lord  Mansfield's  decision  in  Zouch  v. 


1  A  conveyance  of  land  may  be  made  v.  East,  5  Yerg.  41  ;  Phillips  v.  Green, 
directly  to  an  infant.     15  Col.  236.  5  Monr.  344;    Eagle  Fire   Ins.  Co.  v. 

2  Co.  Litt.  2  b  ;  Met.  Contr.  40;  Bac.  Lent,  6  Paige.  635  ;  Allen  v.  Poole,  54 
Abr.  Inf.  6;  Ferguson  v.  Bell,  17  Mo.  Miss.  323;  Illinois  Land  Co.  v.  Bon- 
347.  And  see  Spencer  v.  Carr,  45  ner,  75  111.  315  ;  Dixon  v.  Merritt,  21 
N.  Y.  406  ;  also  Hook  a.  Donaldson,  9  Minn.  196;  Davis  n.  Dudley,  70  Me. 
Lea,  56.  Where  a  deed  to  an  infant  236  ;  Weaver  v.  Carpenter,  42  Iowa, 
was  destroyed  by  the  father  before  it  343  ;  Schaffer  v.  Lavretta,  57  Ala.  14  ; 
was  recorded,  and  a  new  deed  was  exe-  Nathans  v.  Arkwright,  66  Ga.  179  ;  83 
cuted  by  the  same  grantor  to  the  father,  Ind.  382  ;  60  Miss.  420 ;  64  Miss.  8  ; 
it  was  held  that  the  destruction  of  the  Dawson  v.  Helmes,  30  Minn.  107; 
deed  did  not,  even  with  the  assent  of  Bingham  v.  Barley,  55  Tex.  281  ;  Bag- 
the  infant,  divest  his  title,  and  that  ley  v.  Fletcher,  44  Ark.  153;  Birch  i>. 
equity  would  restore  him  to  his  former  Linton,  78  Va.  584  ;  Haynes  v.  Men- 
position.  Breudle  v.  Herrou,  88  N.  C.  nett,  53  Mich.  15.  And  so  as  to  infant 
383.  wife.     Scranton  v.  Stewart,  52  Ind.  68  ; 

3  Kendall  v.  Lawrence,  22  Pick.  93  Ind.  423.  Or  infant  husband.  Bar- 
540;  Gillet  v.  Stanley,  1  Hill,  121;  ker  v.  Wilson,  4  Heisk.  268 ;  Yourse  u 
Bool  v.  Mix,  17  Wend.  119  ;  Wheaton  Norcross,  12  Mo.  549. 

42  657 


§  406  THE   DOMESTIC   RELATIONS.  [PART  V. 

Parsons,  and  commended  it  as  sound  law  in  respect  that  a  deed 
which  takes  effect  by  delivery,  and  is  executed  by  an  infant,  is 
voidable  only ;  though  he  intimated  that  his  own  decision  might 
equally  well  be  referred  to  the  benefit  arising  to  the  infant  from 
the  deed  ;  which,  indeed,  was  one  of  the  grounds  on  which  Lord 
Mansfield  had  decided  that  celebrated  case.1  And  to  confirm 
our  former  distinction  as  the  crucial  one,  it  is  held  that  an 
infant's  conveyance  of  land  by  way  of  gift  or  without  considera- 
tion or  upon  mere  nominal  consideration  is  absolutely  void, 
because  obviously  prejudicial  to  his  interests.2 

So  leases  to  infants  are  not  absolutely  void;  but  voidable 
only.3  And  an  exchange  of  property  made  by  an  infant  is 
voidable.4  And  it  is  held  that  the  infant's  bond  for  title  to 
real  estate  or  his  parol  contract  to  convey  is  voidable  and  not 
void.5  Also  that  his  contract  for  the  purchase  of  land  is  void- 
able.6 A  minor's  tenancy  by  lease  or  otherwise  is  usually 
voidable  by  him.7 

§  406.  Same  Subject  ;  Letters  of  Attorney  ;  Cognovits,  &c.  — 
So  a  power  of  attorney  to  authorize  another  to  receive  seisin  of 
land  for  an  infant,  in  order  to  complete  his  title  to  an  estate 
conveyed  to  him  by  feoffment,  is  voidable  only ;  it  being  an 
authority  to  do  an  act  for  his  probable  benefit.8 

But  letters  of  attorney  from  an  infant  conveying  no  present 
interest  are  held  to  be  absolutely  null.  This  point  was  dis- 
cussed in  Zouch  v.  Parsons,  and  on  the  distinction  of  Perkins' 
rule,  it  was  maintained  that  writings  "  which  take  effect "  can- 
not include  letters  of  attorney,  or  deeds  which  delegate  a  mere 
power  and  convey  no  interest.  Whatever  might  be  thought  of 
this  explanation,  the  conclusion  follows :  "  that  powers  of  attor- 

1   Allen  v.  Allen,  3  Dru.  &  War.  340.  *  Co.  Litt.  51  b;  Williams  v.  Brown, 

Sec  in.  Lit*.  51  //,  n.  by  Hargrave.  34  Me.  .594. 

'-'  Swafford  o.  Ferguson,  3  Lea,  292  ;  5  Weaver  v.   Jones,   24    Ala.    420; 

Robinson  v.  ('milter,  90  Tenn.  705.   Cf.  Yeager  v.  Knight,  60  Miss.  730. 

Slaughter  v.  Cunningham,  24  Ala.  260.  6  McCarty  v.    Woodstock    Co.,    92 

Ah  to  an  infant's  deed  for  necessaries,  Ala.  463. 

Bee  c.  ■(.  7  Valentine  v.  Canali,  24  Q.  B.  D.  166. 

'  Zouch   v.   Parsons,  3  Burr.  1806;  «  Met.  Contr.  41 ;  1  Roll.  Abr.  730; 

Hudson   '■.  Jones,  8  Mud.  310;  Taylor,  Zouch  v.  Parsons,  supra. 
Landlord  &  Tenant,  and  cases   cited  ; 
Griffith  '-.  Schwenderman,  27  Mo.  412. 

058 


CHAP.  II.]  ACTS    VOID   AND   VOIDABLE.  §  406 

ney  are  an  exception  to  the  general  rule,  that  the  deeds  of  in- 
fants are  only  voidable ;  and  a  power  to  receive  seisin  is  an 
exception  to  that  The  end  of  the  privilege  is  to  protect  in- 
fants ;  and  to  that  object  all  the  rules  and  their  exceptions  must 
be  directed."  x  And  the  English  courts  have  uniformly  held 
the  infant's  warrant  of  attorney  void,  even  though  executed 
jointly  with  others.2  In  this  country  there  are  decisions  in 
some  States  to  the  same  effect ; 3  in  others,  again,  the  rule  is 
deemed  somewhat  doubtful.4 

An  infant's  power  of  attorney  to  another  to  sell  his  lands  is 
deemed  so  manifestly  unbenehcial  on  the  face  of  it  as  to  be 
void,  and  a  sale  made  under  such  a  power  does  not  confer  even 
an  inchoate  title.5  But  a  power  of  attorney  from  an  infant  to 
sell  a  note  is  lately  held  voidable,  not  void,  in  California.6  In 
Massachusetts  an  instrument  of  assignment,  not  under  seal, 
which  appoints  the  assignee  attorney  to  receive  the  fund  to  his 
own  use,  is  not  void.7  And  in  Maine  the  act  of  an  infant  in 
transferring  a  negotiable  note,  though  his  name  be  written  by 
another  under  parol  authority,  is  voidable  only.8  The  good 
sense  of  the  rule  seems  to  be,  as  an  American  writer  observes, 
that  an  authority  delegated  by  an  infant  for  a  purpose  which 
may  be  beneficial  to  him,  or  which  the  court  cannot  pronounce 
to  be  to  his  prejudice,  should  be  considered  as  rendering  the 
contract  made,  or  act  done  by  virtue  of  it,  as  voidable  only,  in 
the  same  manner  as  his  personal  acts  and  contracts  are  consid- 
ered.9    And,  we  may  add,  the  English  and  most  of  the  Ameri- 

1  Per  Lord  Mansfield,  in  Zonch  w.  See  Whitney  v.  Dutch,  14  Mass.  457  ; 
Parsons,  3  Burr.  1804.  And  see  Cum-  Met.  Contr.  41  ;  Cummings  v.  Powell, 
mings  v.  Powell,  8  Tex.  88.  8  Tex.  88  ;  1  Am.  Lead.   Cas.  4th   ed. 

2  Saunderson  v.  Marr,  1   H.  Bl.  75  ;  242  el  seq. 

Ashlin  r.  Langton,  4  Moore  &   S.  719,  5  Philpot  v.  Bingham,  55  Ala.  435. 

and  cases  cited.  Cf.  Weaver  v.  Carpenter,  42  Iowa,  343  ; 

3  Lawrence  v.  M'Arter,  10  Ohio,  37;  Armitage  v.  Widoe,  36  Mich.  124. 
Waples  v.    Hastings,  3  Harring.  403;  6  Hastings   v.   Dollarhide,    24    Cal. 
Bennett  v.  Davis,  6  Cow.  393;  Semple  195. 

v.  Morrison,  7  Monr.  298 ;  Pyle  v.  Cra-  7  McCarty  v.  Murray,  3   Gray,  578. 

vens,  4  Litt.    17;    Knox  v.   Flack,    22  And  see  Kingman  v.  Perkins,  105  Mass. 

Penn.  St.  337;  Wainwright  v.  Wilkin-  111. 
son,  62  Md.  146.  8  Hardy  v.  Waters,  38  Me.  450. 

4  Pickler  v.  State,  18  Ind.  266.  But  9  Met.  Contr.  42.  And  see  Powell 
see  Trueblood  v.  Trueblood,  8  Ind.  195.  v.  Gott,  13  Mo.  458. 

659 


§  407  THE   DOMESTIC    RELATIONS.  [PART  V. 

can  decisions  do  not  seem  to  carry  the  rule  beyond  cases  of 
the  techuical  "  warrant  of  attorney,"  to  appear  in  court  and  bind 
the  infant,  as  in  confessing  judgment,  except  it  be  with  refer- 
ence to  an  infant's  land,  which  power  stands  also  upon  a  strong 
footing  of  objection.  What  we  call  "  powers  of  attorney  "  are 
less  likely  than  the  warrant  of  attorney  to  be  to  the  infant's 
prejudice ;  though  we  may  well  assume  that  whatever  an 
infant  cannot  do  he  cannot  authorize  another  to  do  for  him,  so 
as  to  make  the  transaction  more  binding. 

An  infant  cannot  bind  himself  by  cognovit.  "  We  come  tu 
this  conclusion,"  said  Lord  Abinger,  "  on  three  grounds,  each  of 
which  is  fatal  to  the  validity  of  the  cognovit.  First,  it  is  bad 
because  it  falls  within  the  principle  which  prevents  an  infant 
from  appointing  and  appearing  in  court  by  attorney ;  he  can 
appear  by  guardian  only.  Secondly,  by  this  means  the  minor 
is  made  to  state  an  account,  which  the  law  will  not  allow  him 
to  do,  so  as  to  bind  himself;  if  an  action  be  brought  against 
him,  the  jury  are  to  determine  the  reasonableness  of  the  demand 
made.  Thirdly,  the  general  principle  of  law  is,  that  a  minor  is  not 
to  be  allowed  to  do  anything  to  prejudice  himself  or  Ins  rights."  1 

§  407.  Same  Subject ;  Miscellaneous  Acts  and  Contracts 
Voidable  and  not  Void.  —  All  infant  may  in  some  States  avoid 
his  usurious  contracts,  and  recover  the  money  so  lent  under  the 
count  for  money  had  and  received.2  But  the  policy  of  usury  is 
becoming  abandoned  in  many  parts  of  the  country. 

An  infant  may  avoid  his  release  of  damages  for  an  injury  or 
an  award  upon  a  submission  entered  into  by  him.  But  if,  upon 
trial,  the  jury  shall  find  such  damages  to  have  been  satisfied  by  an 
adequate  compensation,  the  infant  shall  recover  nominal  damages 
only.3  The  rule  is  general  that  an  infant  is  not  bound  by  his 
agreement  to  refer  a  dispute  to  arbitration;  nor  by  an  award, 
even  in  his  own  favor;  though  this  is  usually  voidable  only.4 

1  Oliver  r.   Woodroffe,  4  M.   &  W.  under  the  local  statute,  to  a  legal  lia- 

653    (1839).     But   the  second   of  these  bility  to  pay,  cannot  attach  against  an 

grounds  is  not  now  tenable.     See  Wil-  infant's  land.    47  N.  J.  L.  340. 

liamsv.  Moor,  11  M.  &  W.  256.  *  Watson  on   Awards,   ch.  3,   §  1; 

-  Millard  v.  Hewlett,  19  Wend.  801.  Smith,  Gontr.  280 ;  Britton?\ Williams, 6 

;;  Baker  v.   Lovett,  6  Muss.  78.    A  Muni. 453;  Barnabyv. Barnahy,  1  Pick, 

mechanic's    lien,    where    incident   only  221.     See  Guardian  and  Ward,  supra. 

600 


GHAP.  II.] 


ACTS    VOID   AND    VOIDABLE. 


§407 


Among  the  acts  of  the  infants  which  are  in  the  later  cases 
regarded  as  voidable  and  not  void  (nor  of  course  binding)  are 
the  following:  His  appeal  from  a  justice's  decision.1  Judgments 
against  him.2  His  covenant  to  carry  and  deliver  money.3  His 
chattel  mortgage.4  His  agreement  to  convey.5  His  written  obli- 
gation for  the  rent  of  land.6  His  agreement  with  others  for  the 
compensation  of  counsel  retained  in  a  lawsuit  for  their  common 
benefit.7  His  executory  contracts  generally.8  And,  in  short,  his 
deeds  and  instruments  under  seal,  with  perhaps  the  exception  of 
powers  of  attorney  ;  though  it  is  otherwise,  perhaps,  if  the  instru- 
ment should  manifestly  appear  on  the  face  of  it  to  be  fraudulent 
or  otherwise  to  the  prejudice  of  the  infant ;  "  and  this,"  says  Judge 
Story,  "  upon  the  nature  and  solemnity,  as  well  as  the  operation 
of  the  instrument."  9  In  Massachusetts  a  contract  of  charter  to 
an  infant,  though  by  parol,  is  voidable  and  not  void.10  So,  too,  an 
infant's  promise  to  pay  money  borrowed  on  joint  accouut  with 
another.11  And  in  various  instances  a  family  arrangement  as  to 
settlement  of  an  estate  in  which  the  minor  is  interested.12  So  is 
an   infant's  marriage    settlement  voidable   in  general.13     In  so 


i  Robbins  v.  Cutler,  G  Fost.  173. 

2  Trapnall  v.  State  Bank,  18  Ark. 
53;  Kemp  v.  Cook,  18  Md.  130;  Bickel 
v.  Erskine,  43  Iowa,  213  ;  Wheeler  v. 
Ahrenbeak,  54  Tex.  535;  Walkenhorst 
v.  Lewis,  24  Kan.  420;  England  r. 
Garner,  90  N.  C.  197  ;  21  Neb.  680  ;  97 
N.  C.  21.  Thus  a  judgment  of  parti- 
tion is  voidable  as  against  minors  who 
were  not  duly  represented.  94  N.  C. 
732  ;  Montgomery  v.  Carlton,  56  Tex. 
361.  But  the  judgment  is  not  to  be 
impeached  in  a  collateral  suit.  lb. 
See  c  6,  post. 

s  West  v.  Penny,  16  Ala.  186. 

*  Miller  v.  Smith,  26  Minn.  248; 
Corey  v.  Burton,  32  Mich.  30 ;  49  N.  Y. 
Super.  34;  25  Fla.  185.  But  semble 
void  under  some  circumstances,  and  at 
all  events  unenforceable  against  him 
during  his  minority.  Barney  v.  Rut- 
ledge  (1895),  Mich/ 

5  Carrell  v.  Potter,  23  Mich.  377. 

6  Flexner  v.  Dickerson,  72  Ala. 
318. 


7  Dillon  v.  Bowles,  77  Mo.  603.  So 
as  to  an  infant's  contract  creating  an 
easement  in  his  laud.  McCarthy  v. 
Nicrosi,  72  Ala.  332.  So  as  to  an  in- 
fant's agreement  to  accept  a  considera- 
tion in  lieu  of  dower.  Drew  v.  Drew, 
40  N.  J.  Eq.  458.  And  as  to  his  assign- 
ment of  wages,  where  no  parental  right 
intervened,  see  O'Neil  v.  Chicago  R., 
33  Minn.  489. 

8  But  see  next  c. 

9  Per  Story,  J.,  Tucker  v.  More- 
land,  10  Pet.  71 ;  2  Kent,  Com.  236, 
11th  ed.,  n.,  and  cases  cited.  And  see 
Regina  r.  Lord,  12  Q.  B.  757. 

11  Thompson  v.  Hamilton,  12  Pick. 
425. 

11  Kennedy  v.  Doyle,  10  Allen.  161. 
So,  too,  a  purported  gift  to  an  infant 
of  a  contract  of  purchase  involving 
pecuniary  obligation.  Armitage  v. 
Widoe,  36  Mich.  124. 

i2  Turpin  v.  Turpin,  16  Ohio  St  270 
Jones  v.  Jones,  46  Iowa,  466. 

13  §  399. 

661 


§   407  THE   DOMESTIC   RELATIONS.  [PART  V. 

many  cases  of  the  character  discussed  in  this  chapter  is  the 
infant  before  or  at  majority  presented  as  seeking  and  being  per- 
mitted to  set  aside  the  transaction,  that  the  voidable  rather  than 
void  nature  of  the  transaction  is  assumed,  rather  than  asserted, 
and  the  decision  is  more  to  the  point  that,  void  or  voidable,  it 
does  not  under  the  circumstances  bind  him.1 

It  has  been  repeatedly  decided  in  England  that  where  an 
infant  becomes  the  holder  of  shares  by  his  own  contract  and 
subscription  he  is  prima  facie  liable  to  pay  calls  or  assessments; 
but  he  may  repudiate  that  contract  and  subscription ;  and  if  he 
does  so  while  an  infant,  although  he  may  on  arriving  at  full  age 
affirm  his  repudiation,  or  receive  the  profits,  it  is  for  those  who 
insist  on  this  liability  to  make  out  the  facts.2  A  minor's  con- 
tract for  stock  is  doubtless  voidable  at  least  in  this  country,3  or 
if  purely  speculative  and  prejudicial  to  him  may  be  even  void.4 
but  in  general  his  assignment  of  stock  which  he  holds  is  void- 
able only.5 

An  absolute  gift  of  articles  of  personal  property  made  by  an 
infant  can  be  revoked  or  avoided  by  him.6  So  may  his  sale  of 
personal  property.7  So  may  his  assignment.8  And  the  executed 
contract  of  an  infant  follows  the  same  rule  as  an  executory  one ; 
he  may  rescind  the  one  as  well  as  the  other ;  the  more  so,  where 
the  other  party  can  be  put  substantially  in  statu  quo.9  But  if 
before  rescission  the  adult  make  a  bona  fide  sale  of  property  pur- 
chased of  the  minor,  trover  will  not  lie  against  him.10  And  it  is 
held,  on  the  ground  of  an  executed  agency,  that  money  belong- 


1  See  p.  ff.,  Dnbe'   v.  Beaudry,    150  B  Smith  v.  Railroad,  91  Tenn.  221. 
Mass.  448;  12  Q.  B.  759.  6  Person  v.  Chase,  37  Vt.  647  ;  Ox- 

2  Smith,  Contr.  285  ;  Newry  &  Ennis-  ley  ».  Try  on,  25  Iowa,  95.  So,  too,  his 
killeo  R.  R.  Co.  e.  Coombe,  3  Exch.  deed  of  gift  to  a  trustee.  Slaughter  v. 
r,r,r> ;  London  &  Northwestern  R,  R.  Co.  Cunningham,  24  Ala.  260.  Qu.,  whether 
v.  M'Michael,  5  Exch.  114.     See,  as  to  not  rather  void.     §403. 

the   liability  <>f  n  Btock-jobber  in  such  7  Towle  v.  Dresser,  73  Me.  252. 

Brown  v.  Black,  L.R.  8  Ch.  939;  8  City  Savings  Bank  v.  Whittle,  63 

Merry  v.  Nickalls,  L  R.  7  Ch.  733.  And  N.  H.  587. 

Bee  [1894]  3  Ch,  589.  '■'  Hill  v.  Anderson,  5  S.  &  M.  216; 

8  Indianapolis  Chair  Co.  v.  Wilcox,  Robinson  v.  Weeks,  56  Me.  102.     See 

59  fold.  429.  94  N.  C.  355. 

«  Ruchizky  v.  De   Haven,  97   Penn.  10  Carr  v.  Clough,  6  Post.  280;  Riley 

Sr    202.      Cf.    Crummey    v.    Mills,   40  v.  Mallory,  33  Conn.  201. 
1 1  im,  870. 

662 


CHAP.  II.]  ACTS   VOID   AND   VOIDABLE.  §  408 

ing  to  an  infant  soldier  and  received  from  him  by  his  brother, 
with  authority  to  use  it  for  the  support  of  their  needy  parents, 
and  so  used  by  the  brother,  cannot  be  recovered  by  the  infant 
upon  reaching  majority.1  But,  in  general,  an  infant  soldier's 
gift  of  his  bounty  and  pay,  even  to  his  own  father,  is  treated  as 
voidable  and  revocable.2 

§  408.  Infant's  Trading  and  Partnership  Contracts.  —  The 
rule  is  a  general  one  that  an  infant  cannot  trade,  and  conse- 
quently cannot  bind  himself  by  any  contract  having  relation  to 
trade.  "  We  know,  by  constant  experience,"  says  Mr.  Smith, 
"  that  infants  do,  in  fact,  trade,  and  trade  sometimes  very  exten- 
sively. However,  there  exists  a  conclusive  presumption  of  law 
that  no  infant  under  the  age  of  twenty-one  has  discretion  enough 
for  that  purpose."3  In  Bilk  v.  Keighley,  the  infant  was  a 
glazier,  and  the  person  who  sued  him  sought  to  make  out  that 
the  goods  furnished  were  in  the  nature  of  necessaries,  to  enable 
the  infant  to  earn  a  livelihood  ;  but  this  plea  did  not  avail.4  And 
an  infant,  rescinding  a  trading  contract  with  another,  was  al- 
lowed to  recover  back,  in  an  action  for  money  had  and  received, 
a  sum  which  he  had  paid  towards  the  purchase  of  a  share  in  the 
defendant's  trade,  if  without  consideration  and  he  had  actually 
derived  no  benefit  or  profit  from  the  business.5  So,  too,  as  an 
infant  cannot  trade,  he  cannot  become  a  bankrupt,  and  a  fiat 
against  him  is  void.6 

Yet,  even  in  trading  contracts,  it  must  not  be  forgotten  that 
the  current  of  modern  decisions  is  to  make  the  transactions  of 
an  infant  voidable  and  not  void.  The  English  case  of  Goode  v. 
Harrison  is  exactly  in  point ;  where  a  person  was  held  liable 
for  goods  supplied  him  as  one  of  a  partnership,  on  the  ground 
that  the  contract  was  voidable,  not  void,  and  that  the  infant 
on  becoming  of  age    had   substantially  ratified  his  former  act. 


i  Welch  v.  Welch,  103  Mass.  562.  Holmes   v.    Blogg,  8  Taunt.  508.     See 

2  Holt  v.  Holt,  59  Me.  464  ;   supra,     next  chapter. 

6  Smith.  Contr.  282,  and  cases  cited  ; 

8  Smith,  Contr.  278.  See  Whywall  Belton  v.  Hodges.  9  Bing.  365  ;  Rex  v. 
v.  Champion,  2  Stra.  1083;  Di'lk  v.  Wilson,  5  Q.  B.  D.  28;  18  Ch.  D.  109. 
Keifhlev,  2  Esp.  480.  And    see    Winchester   v.    Thayer,    129 


§252. 


*  Dilk  v.  Keighley,  2  Esp.  480.  Mass.  129. 

6  Corpe   v.  Overton,  10  Bing.  252; 


663 


§  408  THE   DOMESTIC    RELATIONS.  fPART  V. 

"  It  is  clear,"  says  Justice  Bayley,  "  that  an  infant  may  be  in 
partnership.  It  is  true  that  he  is  not  liable  for  contracts  entered 
into  during  his  infancy;  but  still  he  may  be  a  partner.  If  he 
is,  in  point  of  fact,  a  partner  during  his  infancy,  he  may,  when 
he  comes  of  age,  elect  whether  he  will  continue  that  partnership 
or  not.  If  he  continue  the  partnership,  he  will  then  be  liable 
as  a  partner." 2  Nor  is  another  principle  to  be  lost  sight  of 
in  trading  contracts;  namely,  that  fraudulent  representations 
and  acts,  though  made  by  an  infant,  may  sometimes  make  his 
contract  binding  upon  him,  or  at  least  afford  a  means  of 
holding  him  answerable  for  the  transaction ;  but  of  this 
hereafter. 

In  this  country  it  is  likewise  admitted  that,  in  point  of  fact, 
infants  do  sometimes  trade;2  but  that,  nevertheless,  their  trad- 
ing contracts  do  not  absolutely  bind  them,  being  voidable  at 
their  option  and  not  absolutely  void.3  Aside  from  his  affirma- 
tion on  reaching  majority,  however,  an  infant  partner  is  not 
liable  individually  for  the  firm  debts  beyond  what  he  put  into 
the  business.4  An  infant's  partnership  agreement,  too,  is  not 
void,  but  voidable.5  An  infant  may  become  a  general  partner  in 
a  limited  partnership  ;  and  in  such  a  case  an  adult  special  partner 
cannot  set  up  the  plea  of  such  infancy  in  disclaimer  of  his  own 
liability.6  Nor,  as  it  would  appear,  can  any  adult  partner  with 
an  infant  shield  himself  by  any  such  plea  from  the  firm's  engage- 
ments ;  but  the  true  situation  is  rather  that  the  minor  may  set 
up  his  own  infancy,  to  release  himself  from  liability  on  contracts 
of  purchase  whereby  assets  have  been  obtained,  and  thus 
throw  the  whole  liability  upon  the  adult  members  of  the  firm ; 


1  5  B.  &  Aid.  147.     See  Smith,  Contr.  ceerlings  in  equity,  .and  in  such  bill  the 

283.  infant  is  not  liable  for  costs,     lb. 

-   Whitney  v.  Dutch,  14  Mass.  457;  5  Jaques  v.  Sax,. '50  Iowa,  3G7 ;  Dun- 

H.ii-iMii     v.     Cooper,     Penning.     sc>5 ;  tour.  Brown,  31    Midi.  182.     That  the 

Kitchen  v,  Lee,  m    Paige,  107  ;  Beller  minor  had  an  interest  in  profits,  hut  had 

»•.  Marchant,  30  [owa,  •">')<>.     An  infant  not  put  in  capital,  does  not  operate  to 

partner  Bued   for  goods  sold   the  firm  discharge  him  from  liability.    Jaques  v. 

may  plead  infancy.    •'!.">  Minn.  488.  Sax,  39  Iowa,  367.     Pee,  as  to  pleadings, 

:1  Mason    o.   Wright,   13   Met.  306;  Kline  w.  Barbour,  70  Ind.  35. 
Kinnen  v.  Maxwell,  66  X.  C  45.  "  Continental  Bank  v.  Strauss,  137 

'   I'.n  l,   r.    Linthic ,   50   Md.  344.  N.  Y.  148. 

Bui  the  firm  maj  be  dissolved  by  pro- 
"G64 


JJHAP.  II.]  ACTS   VOID   AND   VOIDABLE.  §  408 

at  the  same  time  that  the  law  presumes  his  liability  in  the  con- 
cern and  treats  him  as  responsible  until  his  plea  of  infancy  is 
asserted.1  In  such  arrangements,  however,  while  the  infant  is 
protected,  on  the  one  hand,  he  is  not  on  the  other  permitted  to 
derive  undue  advantages  from  his  disability.  Thus,  it  is  held  that 
one  engaged  in  trade  cannot  by  his  own  act  make  children  of 
tender  years  his  partners  in  business ;  though  he  may,  if  indebted 
to  them,  prefer  them  in  assigning  for  the  benefit  of  his  creditors, 
wherever  the  law  permits  of  a  preference.2  Again,  an  infant 
partner  is  not  bound  by  an  assignment  of  partnership  assets 
executed  by  his  adult  co-partner.3  A  note  given  by  the  firm, 
or  a  contract  to  purchase  cannot  be  enforced  against  the  minor 
partner  when  he  pleads  infancy,  whether  the  firm  has  been 
already  dissolved  or  not.4  He  may  by  his  assertion  break  up 
the  partnership.  But  as  to  firm  assets  obtained  by  any  such 
firm  coutract,  these  should  in  justice  be  devoted  to  satisfying 
the  liabilities  incurred  in  procuring  them,  and  the  infant  is  not 
allowed  to  retain  the  partnership  property  nor  to  assert  title  to 
any  portion  of  it,  until  the  firm  creditors  are  satisfied;5  he  is 
thus  likely  to  lose  what  he  has  put  into  the  concern,  if  the  firm 
prove  insolvent,  at  the  same  time  that  he  is  not  individually 
liable.  On  reaching  majority  an  infant  may  by  his  acts  keep 
an  undissolved  partnership  continuing,  and  by  his  own  acts  and 
conduct  commit  himself  fully  to  outstanding  obligations.6  In 
South  Carolina  it  was  once  expressly  decided  that  a  person's 
express  or  implied  ratification  of  the  partnership  upon  reaching 
majority  made  him  liable  for  a  debt  of  the  firm  contracted 
during  his  infancy,  although  he  was  ignorant  of  the  existence  of 
the  debt  at  the  time  of  such  ratification,  and  had,  on  being 
informed  of  it,  refused  to  pay  for  it.7  For  the  principle  thus 
indicated  is,  that  to  affirm  a  partnership  contract  on  reaching 
majority,  and  continuing  to  receive  its  benefits,  and  to  induce 
the  confidence  of  others,  is  to  affirm  it  with  its  usual  inseparable 

1  Continental  Bank  v.  Strauss,  137  N.  4  56   Hun,  475;    Neal    v.  Berry,  86 
Y.  148;  Pelletier  v.  Couture,  148  Mass.     Me.  193. 

269.  5  Felletier  ?>.  Couture,  148  Mass.  209; 

2  Baer  v.  Books,  50  Fed.  898.  Bush  >•.  Linthicum,  - 

8  Foot  v.  Graham,  68  Miss.  529.  6  Salinas  v.  Benni  3.  ('.  285. 

7  Miller  v.  Sims,  2  Hill  (S.  C),  479. 

GG5 


§  409  THE   DOMESTIC   RELATIONS.  [PART  V. 

incidents.  Certainly,  the  infant  member  of  a  firm  should  not 
be  permitted  to  derive  undue  advantages  over  his  partner.1 

§  409.  Void  and  Voidable  Acts  Contrasted  ;  "When  may  Void- 
able Acts  be  affirmed  or  disaffirmed.  —  What,  then,  is  the  differ- 
ence between  the  void  and  the  voidable  contracts  of  an  infant  ? 
Simply  this :  that  the  void  contract  is  a  mere  nullity,  of  which 
any  one  can  take  advantage,  and  which  is,  in  legal  estimation, 
incapable  of  being  ratified  ;  while  a  voidable  contract  becomes  at 
the  option  of  the  infant,  though  not  otherwise,  binding  upon 
himself  and  all  concerned  with  him.2  Acts  or  circumstances, 
then,  which  amount  to  a  legal  ratification,  serve  to  make  the 
voidable  contract  of  an  infant  completely  binding  and  perpetu- 
ally effectual ;  and  this  period  of  ratification  is  usually  to  be  re- 
ferred to  the  date  when  the  disability  of  infancy  ceases,  and  he 
becomes  of  full  age,  —  though  not  always.  What  amounts  to  a 
legal  ratification,  under  such  circumstances,  we  shall  show  in  a 
subsequent  chapter.  On  the  other  hand,  acts  or  circumstances 
which  at  the  proper  time  amount  to  disaffirmance  will  render  the 
infant's  voidable  contract  of  no  effect. 

An  infant's  voidable  conveyance  of  land,  which  is  a  solemn 
instrument,  and  perhaps  his  deeds  generally,  cannot  be  avoided 
or  confirmed  during  his  minority.3  But  as  to  many  other  trans- 
actions it  is  different,  particularly  where  the  contract  relates  to 
personal  property,  or  is  an  unexecuted  one,  to  perform  services,  for 
instance,  and  relates  to  the  minor's  person  ;  so  one  may  at  any 
time  during  minority  put  an  end  to  a  continuing  lease.4  And 
the  American  cases  seem  to  establish  clearly  the  doctrine  that  an 
infant's  sale  or  exchange  or  purchase  of  personal  property,  or  con- 
tract  for  such  sale  or  exchange  or  purchase,  may  be  rescinded  by 

1  See  Kitchen  v.  Lee,  11  Paige,  107;  Bool  v.  Mix,  17  Wend.  119;  Emmons 

Dunton  v.   Brown,  31   Mich.  182.    But  v.  Murray,  16  N.  H.  385;  Cummings  v. 

.  e  Minock  v.  Shortridge,  21  Mich.  304,  Powell,  8  Tex.  80;  Sims  v.  Everhardt, 

when-  an  infant  refused,  on  majority,  102   U.  S.  Supr.'300;  Philips  v.  Green, 

after  the  goods  had    been  disposed    of  3  A.   K.   Marsh.   7;  Tillinghast  v.  Hol- 

and  the  partnership  closed,  to  pay  the  brook,  7  R.  I.  2.30;   83   Ind.  382.     So 

partnership  note,  though  recognizing  the  his  chattel  mortgage  cannot  be   made 

late  partnership  in  some  other  respects,  binding  to  his  prejudice  by  any  act  of 

-  Bee    Met.   Contr.  41;    Sinn,  Eq.  affirmance  during  minority.    Corey  v. 

Juris,  g  241.  Burton,  32  Mich.  30. 

8  Zouch    v.   Parsons,  3    Burr.   1704;  4  Gregory  v.  Lee  (1895),  Conn. 

MeComiie   v.   Leggett,    8   Jones,    425 ; 

666 


CHAP.  III.]       ACTS   BINDING    UPON   THE   INFANT.  §  410 

him  at  any  time  during  minority  ;  and  when  the  transaction  is  thus 
avoided,  the  title  to  the  property  revests  in  the  infant.1  This 
distinction  appears  to  be  recognized  out  of  regard  to  the  infant's 
benefit ;  since  land  might  be  recovered  after  long  lapse  of  time 
upon  disturbing  the  possessor's  title,  while  personal  property 
would  often  be  utterly  lost  if  one  could  not  trace  out  and  recover 
it  until  he  became  of  age.  Furthermore  it  is  easier  thus  to  make 
restitution  to  the  other  party  and  place  things  in  statu  quo.  To 
repudiate  one's  executed  contract  while  yet  an  infant,  so  as  to  gain 
an  unfair  advantage,  is  not  usually  permitted;2  but  the  court  re- 
quires his  decision  to  be  postponed  to  mature  age,  or  otherwise 
attempts  justice  by  requiring  such  restitution  as  he  is  able  to 
make.3  An  infant's  void  conveyance  he  may  have  set  aside  at 
any  time  during  infancy.4 


CHAPTER  III. 

ACTS  BINDING  UPON  THE  INFANT. 


§  410.  General  Principle  of  Binding  Acta  and  Contracts.  —  We 
have  seen  that  the  general  acts  and  contracts  of  infants  are  either 
void  or  voidable,  and  that  the  tendency  at  this  clay  is  to  treat 
them  as  voidable  only.  But  keeping  in  view  the  principle  that 
an  infant's  beneficial  interests  are  to  be  judicially  protected,  we 
shall  find  that  there  are  some  acts  and  contracts  which  he  ought 

1  Grace  v.  Hale,  2  Humph.  27  ;  Ship-  apolis  Chair  Co.  v.  "Wilcox,  59  Ind.  429. 

man  v.  Horton,  17  Conn.  481 ;  Kitchen  So  his  contract  to  marry,  or  to  perform 

v.  Lee,  11  Paige,  107;  Willis  v.  Twom-  labor  for  a  specified  time,  as   seen  in 

My,  13  Mass.  204;  Carr  v.  Clough,  6  chapters  3,  5,  post. 

Post.  280;    Monumental   Building    As-  -  Dunton    v.  Brown,  31   Mich.   182. 

sociation  v.  Herman,  33  Md.  128;  Riley  And  see  §  408. 
v.  Mallory,  33   Conn.   201  ;   Briggs   v.         »  See  c.  5. 

McCabe,  27  Ind.  327 ;  Hoyt  v.  Wilkin-         *  Swafford  v.  Ferguson,  3  Lea,  292. 

son,  57  Vt.  404 ;  McCarthy  v.  Henderson,  A  statute  provision  is  sometimes  found 

138  Mass.  310.     An  infant's  contract  for  as    to    disaffirmance    during    minority 

purchasing  stock  may  be  avoided  or  go  Murphy  v.  Johnson,  45  Iowa,  57. 
unfulfilled   during    minority.      Indian- 

667 


§  411  THE   DOMESTIC   RELATIONS.  [PART  V. 

to  be  able  for  his  own  good  to  perform  and  make  ;  some  acts  and 
contracts  of  which  it  may  be  said  that  the  privilege  of  standing 
upon  a  clear  footing  is  worth  more  to  him  than  the  privilege  of 
repudiation.  Some  such  acts  and  contracts  there  are,  recognized  as 
exceptions  to  the  general  rule  ;  these  are  neither  void  nor  voidable, 
but  are  obligatory  from  the  outset,  and  thus  neither  require 
nor  admit  of  ratification  on  the  infant's  part.1  Again,  there 
are  acts  and  contracts  which  public  policy  makes  obligatory. 

§  411.  Contracts  for  Necessaries  ;  What  are  such  for  Infants. 
—  The  most  important  of  these  binding  contracts  are  those  for 
necessaries;  which  in  fact  are  so  important  that  they  are  often 
mentioned  as  the  only  exception  to  the  rule  of  void  and  voidable 
contracts.  The  general  signification  of  the  word  "  necessaries  " 
has  already  been  discussed  with  reference  to  married  women ; 
but  it  is  readily  perceived  that  what  are  necessaries  for  a  wife 
may  not  be  equally  necessaries  for  a  child,  and  what  are  neces- 
saries for  young  children  may  not  be  equally  necessaries  for  those 
who  have  nearly  reached  majority.  The  leading  principles  of 
the  doctrine  of  necessaries  being  made  clear,  and  a  rule  of  legal  clas- 
sification judicially  announced,  any  man  of  ordinary  intelligence 
knows  how  to  apply  it ;  and  yet  juries  will  not  and  cannot  always 
agree  in  their  conclusions  on  this  point,  every  one  having  some 
preconceived  notions  of  his  own  on  topics  so  constantly  occurring 
in  our  every-day  life,  and  to  so  great  an  extent  involving  indi- 
vidual tastes  and  preferences.  Plainly,  it  is  wrong  to  prevent  an 
infant  from  attaining  objects  not  only  not  detrimental,  but  of  the 
utmost  advantage,  to  him  ; "  since,"  as  it  has  been  observed,  "  other- 
wise he  might  be  unable  to  obtain  food,  clothes,  or  education, 
though  certain  to  possess  at  no  very  distant  period  the  means  of 
amply  paying  for  them  all."  2 

Food,  lodging,  clothes,  medical  attendance,  and  education,  to 
use  concise  words,  constitute  the  five  leading  elemeuts  in  the 
doctrine  of  the  infant's  necessaries.  But,  to  apply  a  practical 
Legal  test,  we  must  construe  these  five  words  in  a  very  liberal 
sense,  and  somewhat  according  to  the  social  position,  fortune, 
prospects,  age,  circumstances,  and  general  situation  of  the  infant 

1  See  Met,  Contr.  64;  Smith,  Contr.        2  Smith,  Coutr.  269. 
o  $eq,  268. 

G08 


CHAP.  III.]      ACTS   BINDING    UPON   THE   INFANT.  §  411 

himself.  "  It  is  well  established  by  the  decisions,"  says  one 
writer,  "  that  under  the  denomination  necessaries  fall  not  only 
the  food,  clothes,  and  lodging  necessary  to  the  actual  support  of 
life,  but  likewise  means  of  education  suitable  to  the  infant's  de- 
gree ;  and  all  those  accommodations,  conveniences,  and  even 
matters  of  taste,  which  the  usages  of  society  for  the  time  being 
render  proper  and  conformable  to  a  person  in  the  rank  in  which 
the  infant  moves."  *  Says  another  :  "  The  word  necessaries  is  a 
relative  term,  and  not  confined  to  such  things  as  are  positively 
required  for  mere  personal  support."2  The  language  of  an 
American  judge  is  this  :  "  It  would  be  difficult  to  lay  down  any 
general  rule  upon  this  subject,  and  to  say  what  would  or  would 
not  be  necessaries.     It  is  a  flexible,  and  not  an  absolute  term."  3 

Articles  of  mere  ornament  are  not  necessaries.  The  true  rule 
is  taken  to  be  that  all  such  articles  as  are  purely  ornamental  are 
not  necessary,  and  are  to  be  rejected,  because  they  cannot  be 
requisite  for  any  one  ;  and  for  such  matters  therefore  an  infant 
cannot  be  made  responsible.  But  if  they  were  not  of  this  de- 
scription, then  the  question  arises  whether  they  were  bought  for 
the  necessary  use  of  the  party,  in  order  to  support  himself  prop- 
erly in  the  degree,  state,  and  station  of  life  in  whicli  he  moved  ;  if 
they  were,  for  such  articles  the  infant  may  be  made  responsible.4 
The  result  of  the  cases  on  both  sides  of  the  Atlantic  seems  to  be 
that  uuless  the  articles  are,  both  as  to  quality  and  quantity, 
such  as  must  be  necessaries  to  any  one,  the  burden  of  proof  lies 
on  the  plaintiff  to  show  such  a  condition  of  life  of  the  defendant 
as  might  raise  to  the  rank  of  necessaries  things  which  would 
otherwise  be  considered  luxuries  and  superfluous.5 

A  pair  of  solitaires  (or  shirt-fasteners),  worth  <£25,  are  not, 
it  would  appear,  necessaries  for  any  infant.6  But  it  seems  that 
presents  to  a  bride,  when  she  becomes  the  defendant's  wife,  may 

1  Smith,  Contr.  269.  v.  Fane,   1  Man.  &  Gr.  550;  Wharton 

2  Met.  Contr.  69.  And  see  Peters  v.  v.  Mackenzie,  5  Q.  B.  606 ;  Rundel  v. 
Fleming,  6  M.  &  W.  42.  Keeler,  7  Watts.  239  :   Bent  v.  .Manning, 

3  Breed  v.  Judd,  1  Gray,  458,  per  10  Vt.  225;  Merriam  v.  Cunningham, 
Thomas,  J.  1 1  Cush.  40. 

4  Per  Parke,  B.,  Peters  v.  Fleming,  6  Ryder  v.  Wombwell,  L.  R.  4  Exch. 
6  M.  &  W.  42.  32.     As    to   a   watch    and    chain,   see 

5  Smith,   Contr.   272,  5th   Am.  ed.,  "Welch  v.  Olmstead,  90  Mich.  492. 
Rawle's  u.,  and  cases  cited;  Harrison 

669 


§  412  THE   DOMESTIC   RELATIONS.  [PART  V, 

be  necessaries.1  Betting-books  are  not  an  infant's  necessaries.2 
Nor  tobacco,  though  for  a  minor  soldier.3  Nor  money  paid  to 
relieve  an  infant  from  draft  for  military  duty.4  Horses,  saddles, 
harness,  and  carriages  may  be  necessaries  under  some  circum- 
stances, but  not  ordinarily ;  and  this  is  the  better  doctrine, 
English  and  American.5  Wedding  garments  for  an  infant  who 
marries  are,  within  reasonable  limits,  necessaries.6  But  not  the 
treats  of  an  undergraduate  at  college.7  Nor,  in  Arkansas,  as  it 
appears,  kid  gloves,  cologne,  silk  cravats,  and  walking-canes.8 
The  uniform  of  an  officer's  servant  is  adjudged  a  necessary  ;  but 
not  cockades  for  his  company.9  An  insurance  contract  is  not 
a  necessary.10  But  a  solicitor's  bill  for  preparing  a  marriage  set- 
tlement may  be.11  Those  who  incline  to  pursue  the  subject  still 
further  will  find  some  interesting  decisions  as  to  balls,  serenades, 
suits  of  satin  and  velvet,  and  doublets  of  fustian,  among  the 
ancient  cases  which  have  survived  the  fashions  they  describe.12 

§  412.  Contracts  for  Necessaries  ;  Subject  continued.  —  It  is 
usual  to  leave  the  question  of  necessaries  in  each  case  to  the 
jury,  without  very  positive  directions.  But  the  dividing  line 
between  court  and  jury  is  not  in  this  respect  clearly  marked, 
as  the  latest  cases  teach  us.  Ryder  v.  Wombwell  lays  it  down 
that  the  question  whether  articles  are  necessaries  is  one  of  fact, 
but,  like  other  questions  of  fact,  should  not  be  left  to  the  jury 
unless  there  is  evidence  on  which  they  could  reasonably  find 
that  they  were.13  The  immediate  object  of  this  decision  was  to 
set  aside  a  verdict  deemed  improper ;  as  to  the  fitness  of  such 

1  Genner  v.  Walker,  19  Law  Times,  8  Lefils  v.  Sugg,  15  Ark.  137. 

N.  s.  398;  3  Am.  Law  Rev.  590.  9  Hands    v.   Slaney,    8   T.    R.    578; 

2  //;.  Coatcs  v.  Wilson,  5  Esp.  52. 

3  Bryant  v.  Richardson,  L.  It.  3  Ex.  10  New  Hampshire  Ins.  Co.  v.  Noyes, 
93,  n.  32  X.  II.  345.     See  Harrison  v.  Fane,  1 

'    Dorrell  V.  Hastings,  28  Iud.  478.  Man.  &  (Jr.   550;  Davis  v.  Caldwell,  12 

G  Harrison   v.  Fane,   1    .Man.  &  Gr.  Cush.  512;    Bent  v.  Manning,  10  Vt. 

550;    Grace    v.    Hale,   2    Humph.    67;  225;    Stanton  v.   Willson,  3  Day,  37; 

Aaron  v.  Harley,  •'>  Rich.  2(1;  Merriam  Glover  v.  Ott,  1  McCord,  572;  Rundel 

v.  Cunningham,  ll  Cush.  40;  Beeler  '•.  v.  Keeler,  7  Watts,  239. 

roung,  i  Bibb,  519;  Owens  '•.  Walker,  »   Helps  v.  Clayton,  17  C.B.N,  s.  553. 

2  Strobh.  I'.'i-  289.  '-  Sec  cases  cited  Met.  Contr.  69,  70; 

'•   Sams  ''.  Stockton,  1  I  15.  M<>nr.  232.  Cro   Eli/,.  583. 

7  Wharton  v.  Mackenzie,  5  <i  15.  1:i  Ryder  v.  "Wombwell,  L.  R,  4  Exch, 
606;  Bi r  v.  Scott,  ll  M.  &  W.  07.     32. 

G70 


CHAP.  III.]      ACTS   BINDING   UPON   THE   INFANT.  §  412 

a  rule  in  its  broader  application  there  is  considerable  doubt.1 
But  it  has  frequently  been  said,  that  in  a  very  clear  case  a 
judge  would  be  warranted  in  directing  a  jury  authoritatively 
that  some  articles,  like  diamonds  and  race-horses,  would  not  be 
necessaries  for  any  minor.2 

The  propriety  of  classing  education  as  among  the  necessaries 
of  an  infant  rests  rather  upon  respectable  dicta  than  precedents. 
Lord  Coke  includes  among  necessaries  for  which  an  infant  may 
bind  himself  by  contract,  "good  teaching  and  instruction, 
whereby  he  may  profit  himself  afterwards  ; "  and  the  doctrine 
within  strict  limits  is  undoubtedly  correct.3  In  Vermont  it  is 
decided  that  a  collegiate  education  is  not  to  be  ranked  among 
those  necessaries  for  which  an  infant  can  render  himself  abso- 
lutely liable.4  But  the  court  seems  to  make  it  but  a  prima 
facie  rule,  and  to  admit  that  extraneous  circumstances  might  be 
shown  to  make  even  this  a  necessary;  while  a  good  common- 
school  education  is  strongly  pronounced  to  be  such.  And  the 
judge  adds  :  "  I  would  not  be  understood  as  making  any  allu- 
sion to  professional  studies,  or  to  the  education  and  training 
which  is  requisite  to  the  knowledge  and  practice  of  mechanic 
arts.  These  partake  of  the  nature  of  apprenticeships,  and  stand 
on  peculiar  grounds  of  reason  and  policy.  I  speak  only  of  the 
regular  and  full  course  of  collegiate  study."  5 

An  infant  is  not  liable,  at  common  law,  for  the  expense  of 
repairing  his  dwelling-house  on  a  contract  made  by  him  or  his 
guardian  or  parent  for  that  purpose ;  although  such  repairs  were 
necessary  for  the  prevention  of  immediate  and  serious  injury  to 

1  Of  this  rule,  says  Cockburn,  C.  J.,  Walker,  19  Law  Times,  sr.  s.  398.    And 

of  the  Queen's  Bench,  still  later:    "I  see  Johnstone  v.  Marks,   19  Q.  B.  D. 

really  cannot   understand  it,  unless  it  509. 

means  that   it  is  to   be  a  question  of  2  See   Harrison    v.   Fane,    Davis    v. 

law  for  the  judge  to  determine  whether  Caldwell,  and  other  cases,  sttpra;  Moh- 

the   articles  disputed  are,  or   are  not,  ney  v.  Evans,  51  Penn.  St.  80. 
necessaries.     If  that  is  to  be  taken  to  8  Co.  Litt.    172;    1   Sid.    112;    Met. 

be  law,  of  course  I  must  act  upon  it ;  Contr.  69,  n. ,  Smith,  Contr.  269,  273. 
but  I  should  certainly  have  preferred  4  Middlebury   College   v.   Chandler, 

the  law  as  it  was  previously  understood  16  Vt.  683. 

to  be,  that  it  was  for  the  jury  to  say  5  Per  Boyce,  J.,   Tb.     A  board   hill 

what  articles  were    reasonably   neces-  contracted  to  enable  attendance  at  school 

sary  with  reference  to  the  position  of  is   a   necessary.     Kilgore    v.    Bich,    83 

the  defendant,  the  infant."     Genner  v.  Me.  305. 

671 


§  412  THE   DOMESTIC   RELATIONS.  [PART  V. 

the  house.1  So  materials  or  services  furnished  to  an  infant  for 
building  on  his  own  land  are  not  necessaries.2  Nor  is  a  dwelling- 
house  built  for  him  a  necessary.3  A  mechanic's  lien  is  not  to 
be  thus  acquired.4  The  law  is  extremely  reluctant  to  permit  an 
infant's  real  estate  to  be  encumbered  by  others  in  any  possible 
way  so  as  to  exclude  his  disaffirmance. 

So  it  is  ruled  that  the  services  and  expenses  of  counsel  in  a 
suit  brought  to  protect  the  infant's  title  to  his  real  estate  can- 
not for  similar  reasons  be  charged  against  the  infant  on  his 
own  contract.5  But  the  doctrine  that  legal  expenses  cannot  be 
charged  as  necessaries  for  an  infant  appears  not  to  prevail  in 
Connecticut ;  and  the  more  liberal  rule  is  asserted,  that  in  cases 
where,  under  peculiar  circumstances,  a  civil  suit  is  the  only 
means  by  which  an  infant  can  procure  the  absolute  necessaries 
which  he  requires,  power  cannot  be  denied  him  to  make  the 
necessary  contracts  for  its  commencement  and  prosecution  ;  for 
it  would  be  a  reproach  to  the  law  to  hold  otherwise.6  In  this 
particular  case  the  circumstances  justifying  relief  were  very 
strong.  Moreover,  the  English  cases  long  ago  established  that 
money  advanced  to  an  infant  to  procure  him  liberation  from 
arrest,  where  he  was  in  execution  or  taken  in  custody  on  a  debt 
for  necessaries,  could  be  recovered  as  necessaries.7  Services  of 
an  attorney  in  defending  the  infant  against  a  criminal  complaint 
may  likewise  be  recovered.8  And  we  have  already  seen  that 
legal  expenses  may  sometimes  be  classed  as  necessaries  for  mar- 
ried women.9  On  the  whole,  it  may  be  said  that  legal  expenses 
on  behalf  of  a  minor  may  or  may  not  be  regarded  as  a  necessary 
for  him,  according  to  circumstances  and  the  reasonableness  of 
incurring  them.  If  a  liability  exists  to  pay  for  legal  services 
whenever  necessary  for  the  infant's  personal  protection  or  that 
of  his  estate,  the  liability  is  limited,  at  all  events  to  the  actual 

1  Tapper  v.  Caldwell,  12  Met.  559;  6  Phelps  v.  Worcester,  11  N.  II.  51. 
West  i».  Gregg,  1  Grant,  53;  Wallis  v.  6  Munson  v.  Washbaud,31  Conn.  303. 
Bard  well,  126  Mass.  36fi ;  Price  v.  San-  1  Clarke    v.   Leslie,    5    Esp.    28;    2 

ders,   60    Iml.   310;    Phillips  v.    Lloyd  Eden,  72. 
(1895),   I!    I.  H   Harkor   v.  Hibbard,  54  N.  II.  539; 

-  Freeman  v.  Bridger,  4  Jones  Law,  1.  Askey  v.  Williams,  74  Tex.  294. 

3  78  Hun,  I  03,  u  tiuj>ra,  p.  100. 

*  36  .Neb.  51. 

672 


CHAP.  III.]      ACTS   BINDING   UPON    THE   INFANT.  §  413 

value  of  those  services,  and  not  extended  to  whatever  the  infant 
may  have  agreed  to  pay.1  And  it  would  appear  that  the  burden 
of  proof  is  upon  an  attorney  to  show  that  the  .suit  could  be 
viewed  in  such  a  light  as  to  entitle  him  to  recover  for  his  fees 
and  disbursements.2  Generally,  a  guardian  or  next  friend  would 
assume  the  responsibility  of  employing  counsel  for  advice  or 
suits  on  an  infant's  behalf.  A  court  of  equity  will  enforce 
against  an  infant  an  agreement  settling  a  suit  made  by  his 
guardian,  when  it  appears  to  have  been  made  for  the  infant's 
benefit.3 

The  doctrine  of  necessaries  is  manifestly  not  to  be  extended 
to  an  infant's  trading  contracts,  as  we  have  already  intimated. 
Thus  the  board  of  four  horses  for  six  months,  the  principal  use 
of  which  was  in  the  business  of  a  hackman,  is  not  within  the 
class  of  necessaries  for  which  an  infant  is  liable,  although  the 
horses  are  occasionally  used  to  carry  his  family  out  to  ride.4 
The  board  of  an  infant,  again,  is  included  among  the  necessaries 
for  which  he  may  pledge  his  credit.5  But  here,  too,  we  must 
keep  within  our  principle.  Thus,  where  an  infant  took  a  house 
to  carry  on  the  business  of  a  barber,  —  the  house  containing  five 
rooms,  two  on  the  ground  floor,  one  of  which  he  occupied  as  a 
shop,  the  other  to  reside  in,  and  three  above,  which  he  underlet,  — 
he  was  held  not  to  be  liable  for  the  rent.6  An  infant  may  con- 
tract for  his  necessary  lodging,  but  he  cannot  bind  himself  for 
more.  Nor  are  farm  implements,  live  stock,  wagons,7  and  the 
like,  to  be  deemed  necessaries  when  purchased  to  carry  on  a 
farm  ;  inasmuch  as  articles  for  business  or  trade,  whether  agri- 
cultural, commercial,  or  mercantile,  cannot  be  brought  within 
the  present  rule. 

§  413.  Contracts  for  Necessaries;  Same  Subject.  —  But  the 
question  in  all  such  cases  is  one  of  mixed  law  and  fact.  And 
articles  prima  facie  to  be  classed  as  luxuries,  such  as  wines, 

1  68  Hun,  589;  81  Tex.  644.  4  Merriam  v.  Cunningham,  11  Cush. 

2  Thrall  v.  Wright,  38  Vt.  494.  40;  supra,  §  408.     But  see  Hall  v.  But 
8  In   re  Livingston,  34   N.   Y.  555.     terfield,  59  N.  IT.  .'554. 

And  so  where  there  is  no  guardian,  and  5  Bradley  v.  Pratt,  23  Vt.  378. 

the  counsel's  services  contributed  to  se-  6  Lowe  v.  Griffith,  1  Scott,  458. 

cure  the  estate  to  the  infant.    Epperson  7  41  Mo.  App.  275. 
v.  Nugent,  57  Miss.  45. 

43  673 


§  413  THE   DOMESTIC   RELATIONS.  [PART  V. 

fruits,  and  the  use  of  a  horse  and  carriage,  might,  under  some 
circumstances,  become  necessaries ;  as  if,  for  instance,  medically 
prescribed,  for  an  infant's  health ;  though  this  salutary  rule  is 
not  designed  to  support  a  quibble.1  The  infant's  clothes  may 
be  fine  or  coarse,  according  to  his  rank ;  his  education  may  vary 
according  to  the  station  he  is  to  fill,  and  the  extent  of  his  prob- 
able means  when  of  age;  and  as  to  servants,  attendance,  and 
the  like,  this  will  depend  on  his  social  position.2  Stock  pur- 
chased for  a  farm,  too,  may  under  some  special  circumstances, 
though  not  usually,  be  treated  as  necessaries.3  And  so  with 
plantation  supplies,  where  a  married  infant  is  intrusted  by  law 
with  the  estate.4  And  upon  such  issues,  quantity  may  be  as 
much  for  the  consideration  of  the  jury  as  quality.5  Primarily, 
the  parent  or  guardian  who  supplies  the  necessaries  is  the  judge 
of  what  quantity  and  quality  are  suitable  for  the  infant.0  And 
if  the  natural  protector  with  whom  the  child  lives  does  his  legal 
duty  as  best  he  may  according  to  his  means,  the  fact  that  he  is 
poor  and  unable  to  pay  for  what  was  furnished  to  the  child,  will 
not  render  the  child's  estate  liable.7 

If  one  furnish  an  infant  with  necessaries,  and  also  other  articles 
not  necessary  under  his  circumstances  and  condition,  he  is  not 
on  that  account  precluded  from  recovering  for  the  necessaries ; 
though,  as  to  the  balance  of  his  claim,  he  may  be  without  a 
remedy.8 

An  infant  is  not  liable  for  necessaries  when  he  lives  under 
the  roof  of  his  father,  who  provides  everything  which  seems 
proper.  Not  only  is  there  here  no  implied  agreement  on  the 
infant's  part  to  pay  for  such  support,  but  if  one  were  expressly 
made  by  him  it  would  be  in  derogation  of  parental  duty.     And 

1  See  Wharton  v.  Mackenzie,  5  Q.  B.  5  Burghart  v.  Angerstein,  6  Car.  & 

606.  P.  600. 

-  Sec  Alderson,  15.,  Chappie  v.  Coo-  B  Thns,   a    journey   for  the    child's 

per,  13  M.  &  W.  258.     Gold  rilling  and  recreation,    without     the     parent's    or 

dentist's    work    upon    his   teeth    should  guardian's  approval,    cannot    generally 

be  classed  among  the  necessaries  of  a  be  deemed  a  necessary.    McKanna  v. 

minor  of  good   means   and  social   posi-  Merry,  fil   111.  177. 
tion.     8trong  v.  Foote,  42  Conn.  203.  7  Hoyt  v.  Casey,  114  Mass.  397. 

I  Afohnev   v.    Evans,  51   Penn.  St.         8  Turberville    v.    Whitehonse,     12 

80.  Price,  692  ;  Benl  v.  Manning,  10  Vt.  225. 

4  Chapman    v.    Hughes,    61     Miss.  And  sec  Johnson  v.  Lines,  G  W.  &  S. 

839.  80;  Wilhelm  v.  Hardman,  13  Md.  140. 
G74 


CHAP.  III.]      ACTS   BINDING   UPON   THE   INFANT.  §  413 

so  when  lie  is  supplied  by  a  guardian  or  widowed  mother,  or 
any  one  assuming  the  place  of  parent.  The  parent  or  the  legal 
protector  having  the  means  and  being  willing  to  furnish  all  that 
is  actually  necessary,  the  infant  can  make  no  binding  contract 
for  any  article  without  such  protector's  consent.  Nor  can  the 
infant  be  charged  for  what  such  protector  ordered  on  his  own 
credit.  Prima  facie,  where  the  child  resides  at  home,  proper 
maintenance  is  furnished  him :  and  the  tradesman  who  furnishes 
goods  to  an  infant  or  the  professional  person  rendering  services 
does  so  at  his  peril;  it  is  incumbent  upon  him  to  show  the 
necessity  of  his  supply  or  service.1  But  an  infant,  when 
absent  from  home,  and  not  under  the  care  of  his  parent  or 
guardian,  is  usually  liable  for  his  own  necessaries.2  An  eman- 
cipated infant  may  agree  with  his  employer  in  such  matters.3 
And  the  law  will  imply  a  promise,  on  the  part  of  an  infant 
having  no  legal  protector,  to  make  payment;4  though  not  for 
any  fixed  amount,  but  only  a  reasonable  price,5  and  certainly 
not  for  what  were  not  necessaries  at  all.6 

There  is  no  inflexible  rule  of  law,  however,  which  makes  it 
incumbent  on  the  tradesman  who  supplies  an  infant  to  inquire 
as  to  his  situation  and  resources  before  giving  him  credit  for 
necessaries ;  though  it  would  be  prudent  always  for  him  to  do 
so.7  And  the  parent  or  guardian  may  sanction  by  words  or 
conduct  the  child's  purchase,  so  as  to  make  it  obligatory.  As 
in  a  case  where  the  infant  daughter,  living  with  her  mother  at 
a  hotel,  drove  to  the  plaintiff's  store  in  a  carriage,  accompanied 

1  Bain  bridge  v.  Pickering,  2  Blacks.  2  Angel  v.  McLellan,  16  Mass.  28; 

1325  ;  Story  v.   Pery,  4  Car.  &  P.  526  ;  Hunt  v.  Thompson,  3  Scam.  179. 
Angel  v.  McLellan,  16  Mass.  28  ;  Wail-  3  Genereux  o.  Sibley  (1895),  R.  I. 

ing  v.  Toll,  9  Johns.  146;  Johnson  v.         4  Hyman  v.  Cain,  3  Jones  Law,  111 ; 

Lines,  6  W.  &  S.  80;  Kline  v.  L'Amo-  Epperson  v.  Nugent,  57  Miss.  45. 
reux,  2  Paige,  419;  Perrin  v.  Wilson,         6  Parsons  v.  Keys,  43  Tex.  557. 
10   Mo.   451 ;    Freeman   v.   Bridger,  4  6  Genereux  v.  Sibley,  supra  :  Morse 

Jones  Law,  1  ;  Smith  v.  Young,  2  Dev.  v.   Ely,    154    Mass.    458.      An    infant 

&  Bat.  26  ;  Connolly  v.  Hull,  3  McCord,  thrown  upon  his  own  support,  and  with- 

6;  Elrod  v.  Myers,  2  Head,  33;  Kraker  out  a  legal  protector,  ought,  in  case  of 

v.  Byrum,  13  Rich.  163 ;  Tilton  v.  Pus-  medical    expenses    incurred,    through 

sell,  11  Ala.  497 ;  Hussey  v.  Roundtree,  another's    wrongful   act,   recover   such 

Busbee  Law,  110.     Perhaps  for  a  return  damages  for  himself  by  way  of  reim- 

of  such   necessaries  as  the  minor  has  bursement.     See  134  Ind.  571  ;  §§  262 

not  consumed  the  tradesman  may  sue.  427-430. 

Nichol  v.  Steger,  2  Tenn.  328.  7  Brayshaw  v.  Eaton,  7  Scott,  183. 

675 


§  413  THE   DOMESTIC    RELATIONS.  [PART  V. 

by  her  mother,  who  waited  in  the  carriage  while  her  daughter 
purchased  the  goods,  some  of  which  she  took  home  in  the  car- 
riage, while  others  were  delivered  at  the  hotel ;  here  it  might 
be  reasonably  inferred,  as  the  court  decided,  that  the  whole  had 
come  under  the  mother's  inspection,  so  as  to  make  the  infant 
liable  for  the  purchase.1 

The  English  cases  seem  to  lay  especial  stress  upon  the  ques- 
tion whether  articles  are  or  are  not  of  themselves  necessaries. 
And  it  is  held,  not  only  that  an  infant  may  enter  into  a  contract 
for  necessaries  for  ready  money,  but  that  he  may  be  bound  by 
any  reasonable  contract  for  necessaries  on  a  credit,  though  he 
has  an  income  of  his  own,  and  an  allowance  amply  sufficient  for 
his  support.2  In  South  Carolina  a  contrary  doctrine  is  main- 
tained ;  namely,  that  an  infant  who  is  regularly  furnished  with 
necessaries,  or  the  means  in  cash  of  procuring  them,  by  his 
parent  or  guardian,  or  from  any  other  source,  is  prima  facie  not 
liable  for  necessaries  furnished  him  on  credit.3  This  is  likewise 
the  rule  in  some  other  States.4  Claims  against  an  infant  for 
necessaries  being  perfectly  valid  at  law,  the  creditor  cannot  sue 
in  equity ; 5  but  it  is  held  that  where  a  minor  cannot  legally 
contract  a  debt  on  the  ground  that  his  parent  or  guardian  has 
properly  supplied  him,  equity  will  compel  him  to  return  the 
furnished  articles  if  he  has  them.6  And  while  it  is  true  that  an 
infant  cannot  bind  himself  when  he  has  a  parent  or  guardian 
who  supplies  his  wants,  he  may  be  bound  by  the  purchase  of 
necessaries  under  the  express  or  implied  authority  of  his  guar- 
dian.7 But  not  for  anything  absurd  or  improper  in  quantity  or 
quality.8  And  where  credit  is  given  to  a  parent  or  guardian, 
the  infant's  estate  is  not  answerable.9 

*  Dalton  v.  Gib,  5  Bing.  N.  C.  198;  to  the  defendant  daring  minority,  the 

Atchison  v.  Ilruff,  50  Barb.  381.     And  burden    is   on   the   latter   to   show,  by 

Bee  Strong??.  Foote,  42  Conn.  203.  way  of   defence,  that  during  minority 

-  Burghart  v.  Hall,  4  M.  &  W.  727  J  his  parent    or  guardian   supplied  him. 

Smith,  Contr.  273.  Parsons  r.  Keys,  43  Tex.  557. 

'Rivera    v.    Gregg,    5    Rich.   Eq.         6  Oliver  v,  McDuffie,  28  Ga.  522. 
L<7t.     And   Bee   Mortara  v.  Hall,  6  Sim.  6  Nichol  v.  Steger,  6  Lea,  303. 

165,  "  Watson  v.  Hensel,  7  Watts,  344. 

'  Nicholson  i   Wilborn,  13  Ga.  467  ;         8  Johnson  v.  Lines,  r>  W.  &  S.  80. 
Nichol  v.  Steger,  6  Lea,  393.     In  a  suit         9  Sinklear  v.  Lmert,  18  111.  03;  148 

to  recover  1 1 « » -  price  of  necessaries  sold  N.  Y.  Super.  152. 

676 


CHAP.  III.]       ACTS   BINDING   UPON   THE   INFANT.  §  414 

The  rule  as  to  necessaries  in  general  is,  that  it  is  the  province 
of  the  court  to  determine  whether  the  articles  sued  for  are  within 
the  class  of  necessaries,  and,  if  so,  it  is  the  proper  duty  of  the 
jury  to  pass  upon  the  questions  of  quantity,  quality,  and  their 
adaptation  to  the  condition  and  wants  of  the  infant.1  But,  as 
the  reader  is  already  apprised,  this  rule  is  neither  stated  nor 
applied  with  invariable  precision  in  all  cases.  Generally,  the 
question  is  one  of  fact  for  the  jury;  and  the  two  principal  cir- 
cumstances are,  whether  the  articles  are  suitable  to  the  minor's 
estate  and  condition,  and  whether  he  is,  or  is  not,  without  other 
means  of  supply.2  An  infant  will  be  held  to  pay  for  necessaries 
what  they  are  reasonably  worth,  but  not  what  he  may  foolishly 
have  agreed  to  pay  for  them.3  Nor  can  the  court  be  precluded, 
by  the  form  of  the  contract,  from  inquiring  into  their  real  value.4 
By  the  better  opinion  it  may  be  shown,  when  the  infant  is  sued, 
not  only  that  the  articles  were  not  of  the  kind  called  necessaries, 
but  that  the  infant  at  the  time  they  were  furnished  was  suffi- 
ciently provided  with  articles  of  that  kind.5 

§  414.  Contracts  for  Necessaries  ;  Money  advanced ;  Infant's 
Deed,  Note,  &c. ;  Equity  Rules.  —  An  infant  is  liable  to  an  action 
at  the  suit  of  a  person  advancing  money  to  a  third  party  to  pay 
for  necessaries  furnished  to  the  infant.6  But  it  is  thought  to  be 
otherwise  as  to  money  supplied  directly  to  the  infant,  to  be  by 
him  thus  expended,  notwithstanding  the  money  be  actually  laid 
out  for  necessaries.7  The  reason  for  this  distinction  is  said  to 
be  that  in  the  latter  case  the  contract  arises  upon  the  lending, 
and  that  the  law  will  not  support  contracts  which  are  to  depend 
for  their  validity  upon  a  subsequent  contingency.8     One  writer 

1  Peters  w.  Fleming,  6  M.  &  W.  42 ;  plaintiff    must   show  that   they   were. 
Harrison   v.  Fane,  1    Man.  &  Gr.  550;  Wood  v.  Losey,  50  Mich.  475. 
Phelps  v.  Worcester,  11  N.  II.  51  ;  Mer-  B  Johnstone  v.  Marks,  19  Q.  B.  I), 
riam  v.  Cunningham,  1 1  Cash.  40  ;  Bee-  509  ;  Barnes  v.  Toye,  13  Q.  B.  D.  410.    It 
ler  v.  Young,  I  Bibb,  519.  is  immaterial  whether  the  plaintiff  did  or 

2  Per  Shaw,  C.  J.,  Davis  ».  Cald-  did  not  know  of  the  existing  supply.  lb. 
well,  12  Cush.  512.  6  Swift  v.  Bennett,    10    Cush.   436; 

3  Locke  v.  Smith,  41  N.  II.  .'546.  Randall  v.  Sweet,  1  Denio,  460. 

4  See  10  Mod.  85;  Met.  Contr.  73;  "  Macphers.  Inf.  505,  506;  Ellis  r. 
2  Kent,  Com.  240;  Parsons  v.  Keys,  43  Ellis,  5  Mod.  368  ;  12  Mod.  197  ;  Earle 
Tex.  557.  An  infant  sued  for  the  price  v.  Peele,  1  Salk.  386  ;  Clarke  v.  Leslie, 
of  goods  has  not  the  burden  of  showing  5  Esp.  28. 

that  they  were  not  necessaries,  but  the         8  See  Swift  v. Bennett,  10  Cush.  436 

(377 


§  414  THE   DOMESTIC    RELATIONS.  [PART   V. 

admits  that,  according  to  some  reports  of  a  leading  case,  the 
court  held  that  if  the  money  were  actually  expended  for  neces- 
saries the  infant  would  be  chargeable ; 2  but  adds  that  the 
weight  of  authority  is,  that  the  infant  is  not  liable  at  law  for 
money  thus  lent  and  appropriated.2  What  this  weight  of 
authority  may  be  is  not  apparent,  but  the  analogies  elsewhere 
noticed  as  to  a  wife  are  to  be  considered  as  in  point.  The  equity 
rule  is,  that  if  money  is  lent  to  an  infant  to  pay  for  necessaries, 
and  it  is  so  applied,  the  infant  becomes  liable  in  equity ;  for  the 
lender  stands  in  place  of  the  payee.3  This  is  the  New  York 
doctrine,  whether  legal  or  equitable.4  And  other  States  assert 
the  same  rule.5  An  innkeeper's  lien  on  the  baggage  of  his 
infant  guest  has  been  protected  in  our  courts,  notwithstanding 
the  infant  acted  improperly  and  contrary  to  his  guardian's 
wishes,  so  long  as  the  innkeeper  acted  in  good  faith ;  and  this, 
even  to  the  extent  of  protecting  the  innkeeper  for  money  fur- 
nished the  infant,  which  was  expended  for  necessaries.6  Circuity 
of  action  should  not  be  favored  at  this  late  day,  especially  when 
the  object  is,  after  all,  to  enforce  a  moral  obligation  in  small 
transactions. 

The  old  books  say  that  an  infant  may  bind  himself  by  his 
deed  to  pay  for  necessaries.7  Yet  it  has  been  considered  clearly 
settled  that  he  cannot  do  so  by  a  bond  in  a  penal  sum  ;  since  it 
cannot  be  to  his  advantage  to  become  subject  to  a  penalty.8 
But  on  the  question  whether  an  infant  is  bound  by  a  note  not 
negotiable  given  for  necessaries,  there  is  an  irreconcilable  differ- 
ence of  opinion  in  the  authorities ;  though  Story  considers  the 
weight  of  modern  English  and  American  authorities  greatly  in 
favor  of  holding  promissory  notes  given  or  indorsed  by  an  infant 

i  Ellis  v.  Kllis,  12  Mod.  107.  8  Marlow  v.  Pitfeild,  1  P.  Wms.  558. 

2  Met.  Contr.  72.  The  learned  writer  4  Smith  v.  Oliphant,  2  Sandf.  306. 

quotes  a  dictum  from  10  Mod.  r>7,  to  And  see  Randall  i\  Sweet,  1  Denio,  460, 

controvert  that  of  L2  Mud.  197,  which  per  Bronson,  C.  J. 

last  held   thai  money  might  be  some-  &  Kilgore  v.  Rich,  83  Me.  305. 

times  properly  charged  upon  the  infant-.  '"■  Watson  v.  Cross,  2  Dnv.  M7. 

Bui  the  context  only  contemplates  the  7  Com.  Dig.  Infant.    But  see  next 

"greal  difference  between  lending  an  page. 

infant   money  to   buy  necessaries,   mul  *  Ayliff  v.  Archdale,  Cro.  Eliz  020; 

actually  seeing  the  money  so  Iui<l  out."  Corpe  r.  Overton,  lo  l>ing.  252;  Smith, 

Beftide                    clear  which  of  the  two  Contr.  281  :  Met.  Contr.  75. 
la  the  better  dictum, 

078 


CHAP.  III.]       ACTS    BINDING    UPON   THE    INFANT.  §  414 

to  be  voidable  only,  and  not  void,  and  therefore  capable  of  being 
ratified  after  the  party  conies  of  age.1  The  mischief  of  holding  an 
infant's  promissory  note  for  necessaries  to  be  worthless  or  even 
voidable  is  the  same  as  in  loans  of  money  for  the  same  pur- 
pose ;  namely,  that  an  infant  is  thereby  allowed  to  get  his  sup- 
plies without  paying  for  them.  Equity  influences  the  later 
cases  ;  that  somewhat  novel  and  yet  manifestly  just  principle 
gaining  ground  that  one  who  receives  advantages  is  liable  on 
an  implied  contract  to  furnish  a  suitable  recompense.  Reeve 
and  others  state  the  law  thus  :  that  an  infant  is  not  bound  by 
any  express  contract  for  necessaries  to  the  extent  of  such  con- 
tract, but  is  bound  only  on  an  implied  contract  to  pay  the 
amount  of  their  value  to  him  ;  that  when  the  instrument  given 
by  him  as  security  for  payment  is  such  that,  by  the  rules  of 
law,  the  consideration  cannot  be  inquired  into,  it  is  void  and 
not  merely  voidable ;  that  whenever  the  instrument  is  such 
that  the  consideration  may  be  inquired  into,  he  is  liable  thereon  for 
the  true  value  of  the  articles  for  which  it  was  given.2  This  excel- 
lent statement  could  hardly  be  improved  upon,  except  so  far  as 
equitable  doctrine  may  properly  enlarge  the  expression ;  and, 
for  a  topic  so  much  unsettled,  is  as  well  entitled  to  be  called 
good  law  as  anything  else  ;  and,  what  is  more,  it  has  justice  in 
it.  The  doctrine  has  received  substantial  encouragement  in 
Massachusetts.3  Even  a  bond  for  necessaries  has  been  deemed 
binding  in  a  State  where  the  statute  allows  its  consideration  to 
be  impeached  and  a  judgment _p?'o  tanto  rendered  for  the  amount 
actually  due.*  The  same  practical  result  seems  to  be  reached 
in  New  Hampshire,  and  other  States,  so  as  further  to  give  the 
infant's   indorser   or   surety   a  remedy  against   him ; 5  and  the 

1  Story,  Prom.  Notes,  6th  ed.  §  78,  Conn  v.  Coburn,  7  N.  H.  368  ;  Dubose 
and  cases  cited.  And  see  2  Kent,  Com.  v.  Wheddon,  4  M'Cord,  221 ;  Haine  v. 
11th  ed.  257;  Bayley,  Bills,  ch.  2,  pp.  Tarrant,  2  Hill  (S.  C),  400;  McMinn 
45,  46,  5th  ed.  Askey  v.  Williams,  74  v.  Richmonds,  6  Yerg.  9.  See  contra, 
Tex.  294.  Swasey  v.  Vanderheyden,  10  Johns.  33. 

2  Reeve,  Bom.  Pel.  229,  230 ;  2  Dane,  A  late  Indiana  case  tends  in  the  same 
Abr.  364,  365  ;  Met.  Contr.  75.  direction.     Here  it  is  said  an  infant  is 

3  Stone  v.  Dennis,  13  Pick.  6,  7,  per  not  liable  at  law  on  his  note  or  other 
Shaw,  C.  J. ;  Earle  i\  Reed,  10  Met.  387.  contract  whereby  he  obtains  money  to 

4  Guthrie  v.  Monis,  22  Ark.  411.  build  a  barn  or  work  his  farm,  although 

5  M'Crillis  v.   How,  3   N.  H.   348;  the   money   be   actually  expended  for 

679 


§414 


THE  DOMESTIC   RELATIONS. 


[PART   V. 


broad  doctrine  conforms  to  equitable  procedure  in  other  analo- 
gous cases.1  A  deed  of  land  or  mortgage  given  by  a  minor  in 
consideration  of  necessaries  furnished  receives  late  favor.2  In 
all  such  cases  it  is  assumed  that  the  extent  of  a  consideration  is 
practically  ascertainable  in  court. 

We  may  here  add  that  infancy  of  the  maker  of  a  note  does 


necessaries ;  since  the  indebtedness  for 
necessaries  for  which  he  is  liable  must 
be  created  directly  therefor.  But,  in 
equity,  the  infant  is  liable  for  the  money 
so  obtained,  where  the  creditor  can 
show  that  it  was  actually  expended  for 
necessaries.  Price  v.  Sanders,  60  Ind. 
310.  But  a  surety  on  an  infant's  note, 
given  for  necessaries,  who  has  been 
compelled  to  pay  it,  cannot  sue  the  in- 
fant during  his  infancy  for  reimburse- 
ment.    Ayers  v.  Burns,  87  Ind.  245. 

1  We  have  seen  a  similar  rule  ap- 
plied of  inquiry  into  consideration  in 
the  case  of  a  married  woman's  contract 
under  equity  and  modern  statutes. 
Supra,  Part  II.  c.  11.  An  account  for 
necessaries  was  allowed  in  equity,  with 
a  lien  on  the  iufant's  reversionary  in- 
terest, in  a  recent  English  case,  although 
the  minor's  deed  of  sale  of  his  rever- 
sionary interest,  given  during  minority, 
as  security,  was  declared  not  binding 
upon  him.  Martin  v.  Gale,  4  Ch.  I). 
628.  A  similar  rule  is  observed  in 
charging  a  married  woman's  sepa- 
rate estate.  In  a  Vermont  case  this 
latex  rule  received  a  striking  illustra- 
tion. An  infant  boarded  in  a  country 
town  for  sonic  twenty  weeks  at  a  rea- 
sonable price.  The  person  to  whom 
he  was  indebted  owed  his  own  adult 
son  money,  and  for  the  convenience 
of  the  parties  drew  an  order  upon  the 
infant,  authorizing  him  to  pay  the 
; tun!  of  the  board  to  his  son  ;  which 

order  was  duly  received,  and  the  in- 
fant agreed  to  pay  it.  Soon  after,  by 
Consent   of   the    parties,  this    order  was 

surrendered,  and  the  infant,  substituted 

in  its   place   his    promissory  note.      The 

note  was  negotiable,  but  never  was  ne- 
gotiated; and  the  holder,  the  adult  son 

680 


of  the  person  furnishing  board,  brought 
a  suit  thereon.  The  evidence  showed 
that  the  defendant's  board  constituted 
the  sole  consideration  of  the  note.  It 
was  held  that  the  consideration  of  the 
note  was  open  to  inquiry,  and  that, 
upon  the  facts  found,  the  defendant 
was  liable  to  the  plaintiff  for  the  full 
amount  of  the  note ;  and,  as  the  court 
also  decided,  with  interest ;  Bradley  v. 
Pratt,  23  Vt.  378.  Says  the  learned 
judge  who  gave  the  opinion  in  this 
case,  after  a  full  examination  of  the 
conflicting  authorities  as  to  the  infant's 
liability  on  his  promissory  note  for 
necessaries :  "  We  may  then,  we  think, 
regard  the  question  as  still  in  clubio, 
and  justifying  the  court  iu  treating  it 
as  still  an  open  question.  And  being 
so,  we  should  desire  to  put  it  upou  safe 
and  consistent  ground.  We  are  led, 
then,  to  inquire  what  is  the  true  prin- 
ciple lying  at  the  foundation  of  all 
these  inquiries.  We  think  it  is,  that 
the  infant  should  be  enabled  to  pledge 
his  credit  for  necessaries  to  any  extent 
consistent  with  his  perfect  safety.  All 
the  cases  and  all  the  elementary  wri- 
ters expressly  hold  that  it  is  for  the 
benefit  of  the  infant  that  he  should  be 
able  to  contract  for  necessaries ;  and 
we  see  no  reason  why  he  may  not  be 
allowed  to  contract  in  the  ordinary 
modes  of  contracting,  so  far  as  his  per- 
fect safety  is  maintained  always."  See 
Thing  »•.  Libbey,  16  Me.  55;  Ray  v. 
Tubbs,  50  Vt.  688. 

2  Searey  v.  Hunter,  81  Tex.  644. 
But  not  beyond  what  may  be  truly 
classed  as  necessaries.    Deeds  and  newt- 

gages  are  generally  voidable  at  least. 
See  last  c. 


CHAP.  III.]       ACTS    BINDING    UPON    THE   INFANT.  §  415 

not  excuse  the  want  of  a  demand  on  him  by  the  holder  in  order 
to  charge  the  indorsee.1 

§  414  a.  Liability  for  Necessaries;  Miscellaneous.  — While 
stress  was  formerly  laid  upon  the  infant's  contract  for  his 
necessaries,  infants  appear  liable  in  various  modern  instances  on 
the  ground  rather  of  an  implied  liability  based  upon  the  neces- 
sity of  the  situation,  and  because  the  infant  derives  a  substan- 
tial benefit  at  another's  cost.  Thus,  where  the  infant  seeks  to 
recover  what  his  services  are  reasonably  worth,  the  adult  is 
permitted  to  set  off  the  reasonable  value  of  what  the  infant  may 
have  received  from  him  in  support  or  otherwise.2  And  it  is 
held  that  one  may  recover  for  necessaries  furnished  to  a  minor, 
taken  from  an  almshouse,  and  supported  on  the  credit  of  property 
which  was  to  become  his  on  his  father's  death.3  But  neces- 
saries purely  in  future* ,  or  upon  some  executory  contract  of  the 
infant,  cannot  charge  him,  for  his  liability  only  arises  when  the 
necessaries  are  furnished.4 

§  415.  Binding  Contracts  as  to  Marriage  Relation  ;  Promise 
to  marry  contrasted.  —  There  are  other  contracts  besides  neces- 
saries which  are  excepted  from  the  general  rule,  and  are  made 
obligatory  upon  the  infant ;  being  neither  void  nor  voidable 

Thus  contracts  of  marriage  are  binding,  if  executed  :  they 
cannot  be  avoided  ou  the  ground  of  infancy,  as  we  have  shown 
in  another  connection,5  except  for  the  non-age  barrier;0  while 
on  the  other  hand  no  such  considerations  of  policy  attach  to  an 
infant's  promise  to  marry,  and  such  promise  is  not  binding.7  So, 
too,  the  general  rights  and  liabilities  of  a  husband  as  to  custody, 
maintenance,  and  the  like,  which  are  incidental  to  the  marriage 
relation,  apply,  from  reasons  of  policy,  to  infants  as  to  adults.8 

1  Wyman  v.  Adams,  12  Cush.  210.        even  though  the  statute  declares  them 

2  Hall  v.  Butterfield,  59  N.  H.  354,     void.     84  Ga.  440 ;  §  20. 

358.      But  there  is  do  set-off  of  what  7  Schouler,  Hus.  &  Wife,  §§  24,  42 ; 

the  minor   was   not  bound  to  pay  for.  Rush  v.  Wick,  31  Ohio  St.  521  ;  42  111. 

92  Ind.  103  ;  §  236.  App.  511. 

3  Trainer  v.  Trumbull,  141  Mass.  8  Bac.  Abr.  Infancy  and  Age  (B) ; 
527.  3  Burr.   1802;  Met.  Contr.   66.     Even 

4  Gregory  v.  Lee  (1895),  Conn.  though   such  marriage    failed    of    tho 

5  See  §  20;  Bonney  v.  Reardin,  6  parent's  consent.  Commonwealth  v. 
Bush,  34.  Graham,  157  Mass.  73. 


Such  marriages  are  only  inchoate 


681 


§  417  THE    DOMESTIC   RELATIONS.  [PART  V. 

So  is  a  contract  for  the  burial  of  a  spouse  held  beneficial  and 
binding  upon  an  infant.1 

§  416.  Acts  which  do  not  touch  Infant's  Interest  ;  Where 
Trustee,  Officer,  &c.  —  The  acts  of  an  infant  that  do  not  touch 
his  interest,  but  which  take  effect  from  an  authority  which  he 
is  by  law  trusted  to  exercise,  are  binding ;  as  if  an  infant  exe- 
cutor receives  and  acquits  debts  to  the  testator,  or  an  infant 
officer  of  a  corporation  joins  in  corporate  acts,  or  any  other  in- 
fant does  the  duties  of  an  office  which  he  may  legally  hold.2 
And  his  conveyance  of  land  which  he  held  in  trust  for  another, 
in  accordance  with  the  trust,  is  not  to  be  disaffirmed  by  him  on 
the  ground  of  infancy  ;  a  principle  which  may  extend  some- 
times to  conveyances  from  a  parent  made  to  defraud  creditors.3 
This  seems  to  arise  from  the  consideration  which  the  law  pays 
to  the  rights  of  others  besides  the  infant ;  or,  to  put  it  differ- 
ently, the  doctrine  may  rest  upon  this  fact,  that  the  infant  in 
such  cases  does  not  act  as  an  infant.  So  the  acts  of  the  king 
cannot  be  avoided  on  the  ground  of  infancy  ;  partly  for  the 
same  reasons,  partly  as  one  of  the  attributes  of  his  sovereignty.4 
This  attribute  of  sovereignty  may  perhaps  enter  as  an  element 
into  the  public  acts  of  infants  in  this  country  who  are  improperly 
chosen  to  civil  offices,  yet  whose  official  acts  should  be  sustained. 

§  417.  Infant  Members  of  Corporations.  — It  is  held  that  in- 
fants and  married  women,  owning  proprietary  rights  in  townships, 
are  not  by  reason  of  legal  incapacity  prevented  from  being  bound 
by  the  acts  of  proprietors  at  legal  meetings.6  And  the  same  is 
doubtless  true  of  infant  shareholders  in  corporations  generally.6 
Their  incapacity  would,  otherwise,  block  the  wheels  of  business 
altogether  in  matters  where  it  is  really  property,  and  not  persons, 
that  are  usually  represented.7 

1  Chappie  w.Cooper,  l".  M  &W.259;         4  Met.  Contr.  66. 
Schouler,  Has.  and  Wife,  §§  41:2,  413.  6  Townsend  v.  Downer,  32  Vt.  183. 

-  Met.  Contr.  66.  See  Butler  v.  Breck,         °  An  infant  may  be  a  membei  of  a 

7  Met.  164;  Roach  v.  Quick,  9  Wend.  238.  mutual  benefit  association  on  a  volun- 

idevastavit  byan  infant adrainistra-  tary  basis,  with  the  usual  consequences. 

tor,  see  Saumm  v.  Coffelt,  79  Va.  510.  Chicago  Mutual    Association  v.  Hunt, 

:;  Proutj  '•.  Edgar,  6  Clarke  (Iowa),  L27  Hi  257.    Ci.  63  Hun,  263. 
3.r»3  ;  Starr  v.  Wright,  20  <  Ihio  St.  97  ;         7  As  to  the  binding  force  <>f  a  decree 

Elliot!  v.  II"  in.  io  Ala.  348;  Nordholt  In  equity  upon  the  infant's  property,  see 

v.  Nordholt,  B7  CaL  552.  post,  c.  6. 
G82 


CHAP.  III.]      ACTS   BINDING   UPON   THE   INFANT.  §  419 

§  418.  Acts  which  the  Law  would  have  compelled.  —  It  is  an 

old  and  well-settled  doctrine  that  an  infant  will  Le  bound  by 
any  act  which  the  law  would  have  compelled  him  to  perform ; 
as  if  the  infant  make  equal  partition  of  lands,  or  assign  dower, 
or  release  a  mortgaged  estate  on  satisfaction  of  the  debt.1  But 
it  is  held  that  this  rule  does  not  apply  to  the  case  of  a  voluntary 
distribution  ;  for  the  law,  though  it  would  have  coerced  a  distri- 
bution, might  not  have  made  just  such  a  one  as  was  made  by  the 
parties.2  The  rights  of  a  minor  in  laud  may  be  condemned 
under  the  power  of  eminent  domain.3 

§  419.  Contracts  binding  because  of  Statute  ;  Enlistment  ;  In- 
denture. —  Enlistments  are  binding  contracts  under  appropriate 
public  statutes.4  Whenever  a  statute  authorizes  a  contract  which 
from  its  nature  or  objects  is  manifestly  intended  to  be  performed 
by  infants,  such  a  contract  must,  in  point  of  law,  be  deemed  for 
their  benefit  and  for  the  public  benefit ;  so  that  when  bona  fide 
made  it  is  neither  void  nor  voidable,  but  is  strictly  obligatory 
upon  them.  Yet  if  there  be  fraud,  circumvention,  or  undue  ad- 
vantage taken  of  the  infant's  age  or  situation  by  the  public 
agents,  the  contract  could  not,  in  reason  or  justice,  be  enforced.5 
And  contracts  of  enlistment  are  not  by  our  statutes  usually  made 
binding  upon  any  infants  under  a  prescribed  age,  without,  at  all 
events,  the  consent  of  parent  or  guardian.6  But  such  require- 
ment of  consent  imports  no  privilege  to  the  minor  ;  for  he  on  his 
own  part  becomes  bound  by  his  enlistment  contract.7 

On  like  principles,  a  minor  may  be  bound  by  his  indentures 
of  apprenticeship,  executed  in  strict  conformity  to  statute  ;  these 
being  likewise  deemed  for  his  benefit.  By  the  custom  of  Lon- 
don, and  under  the  laws  of  some  States,  the  covenants  of  the 

1  Co.  Litt.  38  a,  172  a;  3  Burr.  1801  ;  5  United  States  v.  Bainbridge,  1 
Met.  Contr.  67 ;  Jones  v.  Brewer,  1  Mason,  83.  And  see  Franklin  v. 
Pick.    314  ;    Bavington    v.    Clarke,    2     Mooney,  2  Tex.  452. 

Penn.  115;    I'routy  v.  Edgar,  6  Clarke  °  Matter  of  Tarble,  25  Wis.  390;  In 

(Iowa),  353.  re  McDonald,   1    Low.  100;   Seavey  v. 

2  Kilcrease  v.  Shelby,  23  Miss.  161.  Seymour,  3  Cliff.  439. 

3  86  Ala.  206  ;  15  Col.  492.  "  Morrissey,  Re,  137  U.  S.  157.   Here 

4  King  v.  Botherfield  Greys,  1  B.  &  the  infant  falsely  represented  himself  as 
C.  345  ;  Commonwealth  v.  Gamble,  11  older  than  he  was. 

S.  &  R,  93 ;  United  States  v.  Baiubridge, 
1  Mason,  83,  before  Story,  J. 

683 


§  421  THE   DOMESTIC   RELATIONS.  [FART  Y. 

minor  apprentice  are  obligatory  upon  him.  But  it  is  otherwise 
by  the  common  law  of  England,  and  also  under  the  statutes  of 
Elizabeth,  and  in  New  York,  Massachusetts,  and  other  States. 
Still,  although  the  infant  may  not  be  liable  for  breach  of  his 
covenants,  he  cannot  dissolve  the  indenture.1  The  English  doc- 
trine is  that  indentures  are  so  far  binding  that  the  master  may 
enforce  his  rights  under  them  ;  and  the  legal  incidents  of  service 
as  apprentice  attach  to  this  relation ;  unless  the  master  by  his 
own  misconduct  deprives  the  infant  of  the  benefits  of  the  con- 
tract, in  which  case  the  law  will  release  the  latter  from  his  bar- 
gain.2 A  provision  not  for  the  benefit  of  the  infant  under  such 
an  indenture  may  render  such  an  instrument  inoperative.3  In 
short,  the  age  at  which  an  infant  shall  be  competent  to  perform 
certain  acts,  civil  or  military,  is  subject  to  legislative  provision.4 
§  420.  Infant's  Recognizance  for  Appearance  on  Criminal  Charge. 
—  Partly  out  of  respect  to  statute  requirements,  and  partly,  no 
doubt,  because  it  is  beneficial  to  one  charged  with  crime  to 
be  allowed  to  enter  into  recognizance  for  his  personal  appearance 
in  court,  instead  of  suffering  close  confinement  meantime,  it 
is  held  that  a  minor  defendant  in  criminal  proceedings  may  bind 
himself  personally  by  such  recognizance,  entered  into  after  the 
usual  form  by  himself  and  his  sureties.5 

§421.  Whether  Infant's  Contract  for  Service  binds  him. — 
Apart  from  statutes  prescribing  differently,  and  minor  appren- 
tice acts  in  particular,6  the  executory  contract  of  a  minor,  made 
without  the  consent  of  his  parent  or  guardian,  for  employment 
for  a  certain  or  uncertain  time,  by  means  of  which  he  may  obtain 
necessaries  or  a  livelihood,  may  be  treated  perhaps  as  void  if 


1  Met.  Contr.  66    But  in  some  States  sonable  premium  for  being  taught  the 

he  can.     See    Woodruff  v.  Logan,    1  business  enforced.    [1891]  2  Q.  B.  369. 
Eng   276;  Stokea  v.  Hatcher,  1  Si. nth.         :i  Such,  e.g.,  as  a  provision  for  not 

84;    M'Dowles's  Case,  8  Johns,   .'{.'il  ;  paying    wages    regularly.     Meakin    v. 

Blunl  v.  Melcher,  2  Mass.  228;  Rex  v.  Morris,  12  Q.  B.  D.  352.    §  403. 
[nhabitants  <>f  Wigston,8  B.  &  C.  484;         4  A  minor's  contract  to  support  his 

no  Fiul.  532  ;  Clark  v. Goddard,  •')'.»  Ala.  bastard  child  held  binding, because  stat- 

164;  infra,  Part  VI.  c.  1.  ute  would  have  compelled  it.     Stowera 

-  :>  Dowl.  &  Ky.  839;  6  T.  R.  558;  v.  Hollis,  83  Ky.  544. 
Cro    Jac    194;    Cro.   Car.   I7!>;    Met.         B  State  v.  Weatherwax,  12  Kan  463; 

C'oni r.  66  ;  Rex  v.  Mountsorrel,  •'!  M.  &  404  n.  and  citations. 
s.  197.     [nfant's  covenanl  to  pay  area-        °  §419. 

684 


CHAP.  IV.]    THE   INJURIES  AND   FRAUDS    OF    INFANTS.      §  423 

positively  disadvantageous  in  terms;1  it  is  not  by  the  better 
authorities  to  be  considered  as  absolutely  binding  upon  him, 
however  fair  and  advantageous  its  provisions,  to  the  extent  of 
compelling  him  to  fulfil  stipulations,  like  an  adult;  but  so  far  as 
he  himself  is  concerned  it  is  usually  voidable.2  If  the  contract 
were  made  by  parent  or  guardian,  or  conformed  to  apprentice 
legislation,  the  employer's  relation  as  to  such  a  party  would  of 
course  be  different. 

In  this  country  the  cases  are  very  common  wdiere  a  minor  is 
said  to  be  emancipated  and  entitled  to  contract  for  and  receive 
his  own  wages.  But  the  significance  of  the  word  "  emanci- 
pation" is  not  exact ;  and,  certainly,  the  legal  obligation  of  the 
infant's  contract  for  work  as  to  others  is  by  no  means  com- 
mensurate with  his  right  to  the  fruits  of  his  own  toil.3  His  legal 
capacity  to  do  acts  necessarily  binding  does  not  seem  to  be 
enlarged  by  the  circumstance  that  his  father  has  given  him  his 
time,4  or  that  he  serves  out  with  neither  parent  nor  guardian  to 
assume  liabilities  to  others  for  him.  But  the  right  of  an  infant 
nearly  of  age  and  an  orphan  without  a  guardian,  to  recover  the 
wages  due  him  under  a  contract  for  his  services,  should  in  the 
courts  be  favorably  regarded.5 


CHAPTER  IV. 

THE   INJURIES   AND    FRAUDS    OF   INFANTS. 

§  422.  Division  of  this  Chapter.  —  In  this  chapter  we  shall 
treat,  first,  of  injuries  and  frauds  committed  by  an  infant ;  second, 
of  injuries  and  frauds  suffered  by  an  infant. 

§  423.  Injuries  committed  by  Infant;  Infant  civilly  Responsi- 
ble.—  First,  as  to  injuries  and  frauds  committed  by  an  infant. 

1  Regina  r.  Lord,  12  Q.  B.  755  ;  supra,  child's  emancipation,  see  supra,  Part 
§  403.  III.  c.  5. 

2  See  Person  v.  Chase,  37  Vt.  647,  4  Post,  c.  5. 

and  other  cases  referred  to  in  c.  5,  post.  6  Waugh  v.  Emerson,  79  Ala.  295. 

8  As  to  the  more  general  effect  of  a 

685 


§  423  THE   DOMESTIC   RELATIONS.  [PART  V. 

It  is  a  general  principle  that  infancy  shall  not  be  permitted 
to  protect  wrongful  acts.  To  use  the  forcible  expression  of  Lord 
"Mansfield,  the  privilege  of  infancy  is  given  as  a  shield  and  not  a 
sword.1  And  minors  are  liable,  not  only  for  their  criminal  acts, 
but  for  their  torts ;  and  must  respond  in  damages  in  all  cases 
arising  ex  delicto  to  the  extent  of  their  pecuniary  means,  irrespec- 
tive of  the  form  of  action  which  the  law  prescribes  for  redress  of 
the  wrong.2 

An  infant  is  then  as  fully  liable  as  an  adult  in  an  action  for 
damages  occasioned  by  injury  to  the  person  or  property  of  an- 
other by  his  wrongful  act.3  True,  as  it  lias  been  observed 
where  infants  are  the  actors,  that  might  probably  be  considered 
an  unavoidable  accident,  which  would  not  be  so  where  the  actors 
are  adults.4  But,  says  a  writer,  where  the  minor  commits  a  tort 
with  force,  he  is  liable  at  any  age;  for  in  case  of  civil  injuries 
with  force,  the  intention  is  not  regarded.5 

It  follows  from  what  we  have  said,  that  for  an  injury  occa- 
sioned by  an  infant's  negligence,  he  may  be  held  civilly  answer- 
able. As  where,  in  sport,  he  discharges  an  arrow  in  a  school-room 
where  there  are  a  number  of  boys  assembled,  and  thereby  dis- 
ables another ; 6  or  aims  a  missile  at  an  older  boy  and  accident- 
ally hits  another  and  younger  one.7  And  even  though  under 
seven  years  of  age,  a  child  has  been  held  liable  in  trespass  for 
breaking  down  the  shrubbery  and  flowers  of  a  neighbor's  garden.8 
But  not  for  turning  horses  which  were  trespassing  on  his  father's 
land  into  the  highway,  for  this  does  not  constitute  a  tort.9  All 
the  cases  agree  that  trespass  lies  against  an  infant.  And  minors 
are  chargeable  in  trespass  for  having  procured  others  to  commit 
assault  and  battery.10     While,  furthermore,  an  infant,  as  we  have 

1  Zouch  v.  Parsons,  3  Bnrr.  1802.  valid,  on  its  face,  the  infant  has  no  right 

2  Met.  Contr.  49;  1  Addis.  T<>rfs,  of  action  against  one  aiding  the  officer 
731  ;  8  T.  R.  335  ;  2  Kent,  Corn.  240,  in  making  the  arrest.  Cassier  Re,  139 
241;     School    District    v.   Bragdon,   3  Mass.  458,  461. 

Foat.  507  ;  Bullock  v.  Babcock,3  Wend.  G  Bullock  v.  Bahcock,  3  Wend.  391. 

891  ;  Oliver  v.  McClellan,  21  Ala.  675.  1  Peterson  v.  Haffner,  59  Ind.  130; 

onklio  <■.  Thompson, 29  Barb.  218.  Conway  v.  Peed,  66  Mo.  346. 

4  Bullock  r   Babcock,8  Wend.  391.  8  Hnchting  v.  Engel,  17  Wis.  231. 

>  Reeve,  Dom.  Rel.  258.    See  Neal  9  Humphrey  v.  Donglass,  10  Vt.  71. 

V.  Gillett,  23  Conn.  487.  "Sikes  r.  Johnson,   16   Mass    389; 

An  infant  is  not  liable  to  arrest  on  Tifft   >•.  Tiffr,   4   Denio,   177;    Scott  v. 

civil  process.     If,  however,  the  writ  was  Watson,  46  Me.  362. 

686 


CHAP.  IV.]  THE  INJURIES  AND  FRAUDS  OF  INFANTS.   §  -124 

seen,  cannot  be  sued  for  mere  breach  of  promise  to  marry,  one 
old  enough  to  commit  such  an  offence,  is  liable  in  civil  damages 
for  seduction,  whether  accompanied  or  not  by  such  a  promise.1 

But,  supposing  a  tort  to  have  been  committed  by  the  express 
command  of  the  father;  is  the  infant  then  liable?  So  it  was 
thought  in  a  Vermont  case,  where  the  decision  nevertheless 
rested  on  a  different  ground.2  "An  infant,  acting  under  the 
command  of  his  father,  as  a  wife  in  the  presence  of  her  hus- 
band, might  be  excused  from  a  prosecution  for  crime,  if  it 
should  appear  that  the  intent  was  wanting,  or  that  he  was 
acting  under  constraint ;  yet  he  is  answerable  civiliter  for  in- 
juries he  does  to  another."3  And  more  recently  this  question 
is  plainly  decided  in  Maine,  in  the  affirmative.4  In  North 
Carolina,  too,  it  is  held  that  the  infant  cannot  defend  by  alleg- 
ing that  the  tort  was  committed  by  the  direction  of  one  having 
authority  over  him.5  On  the  other  hand,  it  would  appear  that 
an  infant  cannot  be  held  responsible  for  torts  committed  by 
persons  assuming  to  act  under  his  implied  authority ;  in  other 
words,  that  his  liability  is  not  to  be  extended  in  any  case 
beyond  acts  committed  by  himself  or  under  his  immediate  and 
express  direction.6 

An  infant  in  the  actual  occupation  of  land  is  responsible  for 
nuisances  and  injuries  to  his  neighbor,  arising  from  the  negli- 
gent use  and  management  of  the  property.7  Or  for  wrongful 
detention  of  premises.8  And  ejectment  may  be  maintained 
against  an  infant  for  disseisin,  that  being  a  tort. 

§  424.  Immunity  for  Violation  of  Contract  distinguished.  — 
The  cases  on  the  subject  of  an  infant's  torts  do  not  seem  quite 
consistent,  so  far  as  decisions  upon  the  facts  are  concerned  ;  but 
the  principle  which  runs  through  them  all  serves  to  harmonize 
the  apparent  contradictions.     This  is  the  principle :    that  the 

1  Becker  v.  Mason,  93  Mich.  336;  6  Bobbins  v.  Monnt,  4  Rob.  (N.Y.) 
§  415;  Fry  v.  Leslie,  87  Va.  269.  553;  Burnham  v.  Seaverns,  101   Mass. 

2  Humphrey  v.  Douglass,  10  Vt.  71.  360. 

3  Per  Williams,  C.  J.,  ib.  7  1   Addis.  Torts,  731  ;    McCoon  v. 

4  Scott  v.  Watson,  46  Me.  362.  Smith,  3  Hill,  147. 

6  Smith  v.  Kron,  96  N.  C.  392.    Here         8  McClure  v.  McClure,  74  Ind.  108. 
the  offence  was  trespass  upon  another's 
premises. 

687 


§  424  THE   DOMESTIC   RELATIONS.  [PART  V. 

courts  will  hold  an  infant  liable  for  what  are  substantially  his 
torts,  but  not  for  mere  violations  of  a  contract,  though  attended 
with  tortious  results,  and  though  the  party  ordinarily  has  the 
right  to  declare  in  tort  or  contract  at  his  election.  It  must  be 
remembered  that,  for  his  contracts,  the  infant  is  not  ordinarily 
liable :  for  his  torts  he  is.  And  this  distinction  is  at  the  root 
of  the  legal  difficulty.  The  plaintiff  cannot  convert  anything 
that  arises  out  of  a  contract  into  a  tort,  and  then  seek  to  enforce 
the  contract  through  an  action  of  tort.  Therefore  was  it  held 
that  where  a  boy  hired  a  horse  and  injured  it  by  immoderate 
driving,  this  was  only  a  breach  of  contract  for  which  he  was 
not  liable.1  Nor  was  he  liable  for  breaking  a  borrowed  car- 
riage.2 And  where  in  an  exchange  of  horses  the  infant  had 
falsely  and  fraudulently  warranted  his  mare  to  be  sound,  he 
was  protected  from  the  consequences  on  the  same  principle.3 

The  English  cases,  decided  many  years  ago,  exhibit  a  strong 
disposition  to  apply  this  rule  in  favor  of  an  infant's  exemption. 
And  the  language  of  the  court  in  Mariby  v.  Scott,  with  reference 
to  the  delivery  of  goods  to  an  infant,  and  suit  afterwards  for 
trover  and  conversion,  was  that  the  latter  shall  not  be  charge- 
able :  "  for  by  that  means  all  infants  in  England  would  be 
ruined."4  Says  a  judge,  deciding  a  case  on  the  same  general 
principle,  "  the  judgment  will  stay  forever,  else  the  whole  foun- 
dation of  the  common  law  will  be  shaken." 5  But  a  more 
equitable  principle  pervades  the  later  cases.  Thus  in  an  Eng- 
lish case,  where  one  twenty  years  old  hired  a  horse  for  a  ride, 
and  was  told  plainly  that  it  was  not  let  for  jumping,  and  not- 
withstanding caused  the  horse  to  jump  a  fence  and  killed  the 
animal,  lie  was  held  liable  for  the  wrong.6  And  in  Vermont  an 
infant  was  held  answerable,  not  many  years  ago,  where  he  hired 
a  horse  to  go  to  a  certain  place  and  return  the  same  day,  then 
doubled  the  distance  by  a  circuitous  route,  stopped  at  a  house 
on  the  way,  left  the  horse  all  night  without  food  or   shelter, 


1  Jennings  v.  Rundall,  8  T.  R.  335.  4  1    Sid.   129,  quoted  with  upproba- 

-  Schenck  v.  Strong,  1  South.  87.  tion  in  Jennings  v.  Rundall,  supra. 

>  (in  in  v,  Greenbank,  2  Marsh. 485;  c  Johnson  v.  l'ye,  1  Keb.  905.    Seen. 

I           :    -     Haswell,  4    Campb.   118;  to  Howlett  v.  HasweU,  supra. 

Morrill  v.  Aden,  19  Vt.  505.  «  Bu.ru.ard  v.  Haggis,  14  C.  B.n.s.45. 

688 


CHAP.  IV.]   THE   INJURIES  AND  FRAUDS   OF  INFANTS.      §  424 

and  by  such  over-driving  and  exposure  caused  the  death  of 
the  horse.1  This  is  the  Massachusetts  doctrine  likewise,2  and 
that  of  other  States.3  The  New  Hampshire  rule  is  that  the 
infant  bailee  of  a  horse  is  liable  for  positive  tortious  acts  wil- 
fully committed,  whereby  the  horse  is  injured  or  killed;  though 
not  for  mere  breach  of  contract,  as  a  failure  to  drive  skilfully.4 
The  distinction  to  be  relied  upon  is,  that  when  property  is 
bailed  to  an  infant,  his  infancy  protects  him  so  long  as  he 
keeps  within  the  terms  of  the  bailment;  but  when  he  goes 
beyond  it,  there  is  a  conversion  of  the  property,  and  he  is  liable 
just  as  much  as  though  the  original  taking  were  tortious.5 

Chief  Justice  Marshall  pronounces  infancy  to  be  no  complete 
bar  to  an  action  of  trover,  although  the  goods  converted  be  in 
the  infant's  possession  in  virtue  of  a  previous  contract.  "  The 
conversion  is  still  in  its  nature  a  tort ;  it  is  not  an  act  of  omis- 
sion but  of  commission,  and  is  within  that  class  of  offences  for 
which  infancy  cannot  afford  protection."  6  This  doctrine  is  ap- 
proved in  New  York,"  and  in  Maine.8  So,  in  England,  deti- 
nue will  lie  against  an  infant,  where  goods  were  delivered  for  a 
special  purpose  not  accomplished.9  And  the  general  rule  seems 
to  be  now  well  established  that  an  infant  is  liable  for  goods 
intrusted  to  his  care,  and  unlawfully  converted  by  him ;  though 
as  to  what  would  constitute  such  conversion,  the  authorities 
are  not  agreed.10  Thus  it  is  held  that  while  a  ship-owner  can- 
not sue  his  infant  supercargo  for  breach  of  instructions  he  may 
bring  trover  for  the  goods.11  And  an  infant,  prevailing  on  the 
plea  of  infancy  in  an  action  on  a  promissory  note  giveu  by  him 
for  a  chattel  which  he  had  obtained  by  fraud  and  refused  to 
deliver  on  demand,  has  still  been  rendered  liable  to  an  action  of 


1  Towne  v.  Wiley,  23  Vt.  355.     And  had  been  relied  on,  in  Cadwallader  v. 
see  Ray  v.  Tubbs,  50  Vt.  688.  McClay,  37  Neb.  359. 

2  Homer  v.  Thwing,  3  Pick.  492.  6  Vasse  v.  Smith,  6  Cranch,  226. 

3  Freeman  v.  Boland,  14  R,  I.  39.  7  Campbell  v.  Stakes,  2  Wend.  137. 
*  Eaton  v.  Hill,  50  N.  H.  235.  8  Lewis  v.  Littlefield,  15  Me.  233. 

5  Towne   v.  Wiley,  supra,  per  Red-  9  Mills  v.  Graham,  4  B.  &  P.  140. 

field,  J.     The  rnle  is  otherwise  in  Penn-  10  See    Story,    Bailments,    §    50;    2 

sylvania.     Penrose  v.  Curren,  3  Rawle,  Kent,   Com.   241  ;  Baxter   v.  Bush,  29 

351.     An  infant  of  apparent  discretion  Vt.  465  ;  Schouler  Bailments. 

was  not  allowed  to  defraud  upon  the  u  Vasse  v.  Smith,  6  Cranch,  226. 
settlement  of  a  suit,  where  his  promise 

44  689 


§  425  THE  DOMESTIC   RELATIONS.  [PART  V. 

tort  for  the  conversion  of  the  chattel ;  the  original  tort  not 
having  been  superseded  by  a  completed  contract.1  Iteplevin 
would  lie  for  the  goods  even  where  a  suit  for  damages  might 
fail.2  For  stolen  money  and  stolen  goods  converted  into  money, 
an  infant  is  held  liable  in  assumpsit.3  Yet  his  conversion  of 
specific  goods  should  be  carefully  distinguished  from  what  is 
in  substance  a  breach  of  his  contract  to  sell  and  account  for 
profits.4 

Where  an  action  for  money  had  and  received  was  brought 
against  an  infant  to  recover  money  which  he  had  embezzled, 
Lord  Kenyon  said  that  infancy  was  no  defence  to  the  action ; 
that  infants  were  liable  to  actions  ex  delicto,  though  not  ex  con- 
tractu, and  though  the  action  was  in  form  an  action  of  the  latter 
description,  yet  it  was  in  point  of  substance  ex  delicto.6  For 
embezzlement  of  funds,  therefore,  an  infant  may  be  considered 
liable.6  And  in  New  York,  and  some  other  States,  an  infant  is 
held  responsible  in  tort  for  obtaining  goods  on  credit,  intending 
not  to  pay;7  or  for  drawing  a  check  fraudulently  against  a 
bank  where  he  has  no  funds,  in  payment  of  his  purchase.8  In 
New  Hampshire,  the  general  rule  is  stated  to  be,  that  if  false 
representations  are  made  by  an  infant  at  the  time  of  his  con- 
tract, he  may  set  up  infancy  in  defence  ;  but  that  if  the  tort  is 
subsequent  to  the  contract,  aud  not  a  mere  breach  of  it,  but  a 
distinct,  wilful,  and  positive  wrong  of  itself,  then,  although  it 
may  be  connected  with  a  contract,  the  infant  is  liable.9 

§  425.  Same  Subject ;  Infant's  Fraudulent  Representations  as 
to  Age,  &c  —  The  plea  of  infancy  has  long  been  considered,  both 
in  England  and  this  country,  a  good  defence  to  an  action  for 
fraudulent  representation  and  deceit.  Thus,  the  rule  is,  that  an 
infant  who  falsely  affirms  goods  to  be  his  own,  and  that  he  had 
a  right  to  sell  them,  and  thereby  induces  the  plaintiff  to  purchase 

i  Walker  i\  Davis,  1  Gray,  500.    And  «  Elwell  v.  Martin,  32  Vt.  217. 

Bee  Pitta  v.  Hall,  9  N.  H.  441.  7  Wallace  v.  M.»rsc,  5  Hill,  .391,  and 

-  Badger  v.  Phinney,  15  Mass.  359.  cases  cited.    Bat  the  rule  appears  other- 

:;  Shaw  V.  Coffin, 58  Me. 254 ;   Elwell  wise  in   Indiana.     Knot   v.   Stevenson's 

v.  Martin,  82  Vt.  217.  Adm'r,  24  End.  115. 

4  See  Monger  v.  Hess,  28  Barh.  75.  8  Mathews  v.  Cowan,  59  111.  341. 

And  see  Bums  v.  Hill,  19  Ga.  22.  B  Fitts  v.  Hall,  9  N.  11.441 ;  l'rescott 

6  Bristow  v.  Eastman,  1  Esp.  172.  v.  Norris,  32  N.  H.  101. 

690 


CHAP.  IV.]    THE   INJURIES  AND  FRAUDS  OF   INFANTS.      §  425 

them,  is  not  responsible.1  For  the  plea  of  infancy,  as  it  is  some- 
times said,  will  prevail  when  the  gravamen  of  the  fraud  consists 
in  a  transaction  which  really  originated  in  contract.2  Still  more 
frequently  has  it  been  held  that  for  a  false  and  fraudulent  rep- 
resentation that  he  was  of  full  age,  there  is  no  remedy  against 
the  infant;  whether  money  were  advanced  or  goods  intrusted  to 
him  on  the  strength  of  such  representation.3  The  reader  must 
reconcile  the  sense  of  these  rules  with  some  of  the  fore<>oin<r 
cases  as  best  he  may.  If  anything  be  needed  to  show  the  inad- 
equacy of  common-law  remedies  for  frauds  and  wilful  misrepre- 
sentations, it  is  just  such  maxims  as  these,  which  have  been 
perpetuated  from  the  old  books. 

Upon  common-law  principle  it  may  well  be  said  that  while 
an  infant's  false  representation  of  full  age  or  other  material  fraud 
may  perhaps  constitute  a  separate  cause  of  action,  as  for  a  tort, 
it  will  not  render  his  contract  valid  so  as  to  estop  him  from 
avoiding  it.4  The  result  is  circumlocution  and  uncertainty, 
oftentimes  in  trivial  matters.  And  it  is  sometimes  held  that 
such  an  action,  as  for  tort,  will  not  lie.5 

Chancery,  handling  its  weapons  with  more  freedom,  is  accom- 
plishing results  in  this  respect  more  widely  useful.  The  doc- 
trine of  the  English  equity  courts  appears  to  have  been,  for 
years,  that  where  payment  is  made  to  one  falsely  representing 
himself  as  an  infant,  this  is  a  discharge  for  the  sum  paid;  but 
that  where  there  was  no  such  misrepresentation  the  trustee  still 
remains  liable ;  the  mere  belief  that  one  was  of  age,  of  course, 
affording  no  ground  of  justification.6  An  English  bankruptcy 
case  of  modern  date  carries  the  principle  still  farther ;  far  enough 

1  Grove  v.  Nevill,  1  Keb.  778  ;  1  As  to  au  iufant's  false  representation  of 
Addis.  Torts,  661  ;    Prescott  v.  Norris,     age  when  marry iug,  sec  §  -A). 

32  N.  H.   101;    Morrill  v.  Aden,  29  Vt.  4  Carpenter    v.    Carpenter,   45    Ind. 

465.     But  see  Word  v.  Vance,  I  Nott  &  142;    Conrad  v.  Lane,  26  Minn.  389; 

M'Cord,  197.  Heath  v.  Mahonev.  14  N.  Y.  Stipr.  100; 

2  Gilson  v.  Spear,  38  Vt.  311.  Studwell  v.  Shapter,  54  N.  Y.  249.    And 

3  Johnson  w.  Pye,  1  Sid.  258  ;  Price  see  Whitcomb  v.  Joslyn,  51  Vt.  79; 
v.  Hewett,  8  Exch.  146  ;  s.  c.  18  E   L.  Hughes  v.  Gallans,  10  Phila.  618. 

&  Eq.  522;  Burley  v.  Russell,  10  N.  H.  5  Nash   v.  Jewett,  61    Vt.  501,  and 

184;  Conroe  v.  Birdsall,  1  Johns.  Cas.  eases  cited. 

127;  Merriam  v.  Cunningham,  11  Cush.  °  Overton  v.  Bannister,  3  Hare,  503; 

40 ;  Brown  v.  MeCune,  5  Sandf .  224 ;  Stikeman  v.  Dawson,  1  De  G.  &  S.  90 
Carpenter  v.  Carpenter,  45   Ind.    142. 

691 


§  425  THE   DOMESTIC   RELATIONS.  [PART   V. 

to  startle  those  who  have  reposed  upon  the  assurance  that  the 
ancient  judgments  "  will  stay  forever."  A  young  man,  who 
from  his  appearance  might  well  have  been  taken  to  be  more 
than  twenty-one  years  of  age,  engaged  in  trade,  and  wished  to 
borrow  or  to  obtain  credit,  and  for  the  purpose  of  doing  so 
represented  himself  to  the  petitioner,  expressly  and  distinctly, 
as  of  the  age  of  twenty-two.  It  was  held  that,  whatever  the 
liability  or  non-liability  of  the  infant  at  law,  he  had  made  him- 
self liable  in  equity  to  pay  that  debt.1  But  in  a  somewhat  later 
case,  not  inconsistent  with  these  others,  it  was  held  that  an 
infant's  settlement  upon  his  wife  might  be  avoided  by  him  on 
arriving  at  majority,  notwithstanding  there  was  some  evidence 
that  he  fraudulently  misstated  his  age  to  her  solicitor;  the 
fact  being,  however,  that  she,  a  widow  of  thirty-two,  knew  per- 
fectly well  that  he  was  under  age,  and  was  not  misled  by  his 
representations.2 

The  result  of  these  late  English  decisions  is  to  reopen  in  that 
country  the  whole  subject  of  an  infant's  liability  on  his  fraudu- 
lent misrepresentations ;  and  considerable  uncertainty  appears 
to  pervade  the  latest  common-law  decisions  in  that  country, 
which  incidentally  bear  upon  the  subject.3  Whether  the  new 
or  the  old  doctrine  is  in  the  end  to  prevail,  it  is  too  early  yet  to 
say ;  but  a  collision  has  come,  towards  which  equity  and  the 
common  law  were  fast  tending.  Much,  however,  depends  upon 
the  position  in  which  the  infant's  liabilities  are  presented  in 
court.4 

1  In  re  Unity  and  Banking  Associa-  be  shown."    lie  fnrther  observes  :"  The 

tion,  3    De  G.  &  J.  63  (1858).     Lords  privilege  of  infancy  is  a  legal  privilege. 

.Justices  Bruce   and  Turner  concurred  On  the  one  hand.it  cannot  be  used  by 

in   this  opinion,  both  expressing  some  infants  for  the  purposes  of  fraud.     On 

reluctance  in  giving  the  judgment.  the  other  hand,  it  cannot,  I  think,  be 

-  Nelson   >■    Stocker,  4  De  G.  &   J.  allowed  to  be  infringed  upon   by  per- 

458(1859).     Lord  Justice  Turner,  com-  sons  who,    knowing    of    the    infancy, 

minting   upon   the  case,  said:  "There  must   1)0    taken    also   to    know   of    the 

can  be  no  doubt  that  it  is  morally  wrong  legal  consequences  which  attach  to  it." 

in  ;m  infant  of  competent  age,  as  it  is  lb.  p.  465.     See  Inman  v.  Inman,  L.  R. 

in  any  Other  person,  to  make  any  false  15  Eq.  200. 

representation   whatever;    but  the  ob-         8  See  De  Boo  v.  Foster,  12  C.  B. 

servance  of  obligations  or  duties  which  n.  s.  272  (isr>2);   Wright  v.  Leonard, 

ilv    Dpoil    moral   grounds   cannot     11  C.  B.  N.  S.  258. 
be  enforced  in  chancery.     Some  wrong         *  Thus,  recently,  where  an   infant 
or  injury  to  the  party  complaining  must    had  obtained  a  lease  on  a  false  rep 

692 


CHAP.  IV.]    THE   INJURIES  AND  FRAUDS   OF  INFANTS.      §  426 

§  420.  The  Same  Subject.  —  The  civil-law  doctrine  is  clearly 
that  if  a  minor  represents  himself  of  age,  and  from  his  person  he 
appears  to  be  so,  any  contract  made  with  him  will  be  valid;  and 
the  law  protects  those  who  are  defrauded,  not  those  who  commit 
fraud.1  And  such  was  the  Spanish  law  as  formerly  prevalent  in 
our  Southwestern  States.2  In  a  Maryland  case,  too,  we  find  the 
suggestion  that  if  an  infant  forms  a  partnership  with  an  adult 
he  holds  himself  out  fraudulently  to  the  world.3  In  Texas,  the 
fraudulent  representations  of  an  infant  are  binding  upon  him.4 
Intimations  are  sometimes  found  in  the  courts  as  to  gross  frauds 
which  might  bind  an  infant.5  And  in  Kentucky,  not  long  since, 
the  court  refused  to  allow  a  deed  made  by  a  wife  and  her  hus- 
band to  be  avoided  on  the  ground  of  the  wife's  infancy,  when,  to 
induce  the  innocent  purchaser  to  take  the  land,  she  and  her 
husband  had  made  oath  before  a  magistrate  that  to  the  best  of 
their  knowledge  and  information  she  was  more  than  twenty-one 
years  old.  This  was  a  righteous  decision.6  In  some  other 
States  an  infant  nearly  of  age  who  entraps  another  into  a  pur- 
chase or  mortgage  loan  by  direct  participation  in  a  fraud  as  to 
his  or  her  age,  has  been  estopped  in  chancery  from  attacking  the 
title  to  the  land  afterwards  on  that  ground,  and  thereby  perpe- 
trating a  fraud.7     Beyond  this  there  seems  increased  authority 

resentation  that    he   was    of   full  age,  ferred  to,  while  the  decision  went  upon 

it  was  held  in  chancery  that  the  lease  a   totally   different   ground.     As   to   a 

must  he  declared  void  ami  possession  partnership  where  the  infant  deceived 

given  up,  and  the  infant  enjoined  from  the  adult   concerning  his  age,  see  59 

parting  with  the  furniture  ;    hut  that  Md.  344. 

the  infant  could  not  be  made  liable  for  4  Kilgore   v.  Jordan,  17   Tex.  341 ; 

use    and     occupation.       I.empriore    v.  Carpenter  v.  Pridgen,  40  Tex.  32. 
Lange,  L.  P.  12  Ch.  D.  675.  B  Stoolfos   v.  Jenkins,    12    S.    &   R. 

1  1  Dom.  pt.  1,  b.  4,  tit.  6,  §  2.  399;  2  Kent,  Com.  241.     And  see  Ster- 

2  See   able   discussion   of   this   sub-  ling  v.  Adams,  3  Day,  411  ;  Davies,  J., 
ject    by    Hemphill,    C.    J.,    Kilgore    v.  in  Henry  v.  Root,  23  N.  Y.  544. 
Jordan,    17    Tex.    341.      There   is   not  6  Schmitheimer  v.  Eiseman,  7  Bush, 
another  American    case    to    be   found  298. 

where  this  subject  is  so  fully  discussed,  ?  Ferguson  v.  Bobo,  54   Miss.  121. 

in  its  civil-law,  common-law,  and  Eng-  Here  the  fraud  appears  to  have  been 

lish  equity  bearings  (1870).  perpetrated  without  any  positive  mis- 

8  Kemp  v.  Cook,  18  Md.  130.     The  statement   as   to   age.     A  clearer  and 

remark    is    quoted    as    that    of    Lord  later  case  is  Pemberton  Building  As- 

Mansfield,  in  Gibbs  v.  Merrill,  3  Taunt,  sociation  v.  Adams   (1895),  N.  J.  Eq. 

307,  but  this  must  be  an  error,  as  no  In  Lacy  v.  Pixler,  120   Mo.  383,  such 

such  language  appears  in  the  case  re-  an  issue  is  not  clearly  presented. 

693 


§  427  THE   DOMESTIC    RELATIONS  [PART  V. 

for  asserting  that  the  American  doctrine  on  this  subject  is  un- 
settled, and  that  it  responds  to  the  change  now  going  on  in 
the  English  courts.1  But  an  equity  court  in  North  Carolina 
refused,  not  many  years  since,  to  compel  specific  performance  of 
an  infant's  contract  on  the  alleged  ground  of  fraudulent  misrep- 
resentation of  his  father  and  himself,  that  he  was  of  full  a^e  • 
following  the  old  common-law  rule  instead  of  opposing  it.2  And 
in  many  States  still  an  infant  will  not  thus  be  debarred  from 
disaffirming  his  conveyance  at  majority.3 

But  our  American  statutes  sometimes  quicken  the  infant's 
sense  of  honor.  Thus,  in  Iowa,  it  is  enacted  that  one  who, 
in  selling  real  estate,  represents  himself  to  be  of  full  age,  and 
induces  the  grantee  to  buy  on  the  strength  of  that  representa- 
tion, cannot  afterwards  disaffirm  his  contract  on  the  ground  of 
infancy.4  It  would  be  well  if  similar  statutes  were  enacted  in 
every  State.  We  assume,  of  course,  in  general,  that  the  infant 
thus  misrepresenting  has  reached  years  of  discretion  and  in 
appearance  might  be  taken  for  an  adult. 

§427.  Injuries,  &c,  suffered  by  Infants. — Second.  As  to 
injuries  and  frauds  suffered  by  infants.  Infants  have  a  right  to 
sue,  by  guardian  or  next  friend,  to  recover  damages  for  injuries 
done  to  person  or  property  by  the  tortious  acts  of  another;  and 
the  ordinary  principles  of  law,  in  this  respect,  as  to  contributory 
negligence,  apply  to  them  as  to  adults.5  But  by  reason  of  their 
tender  years,  their  rights  and  remedies  receive  a  somewhat 
peculiar  treatment  in  the  courts,  as  we  proceed  to  show. 

1  In    several   of    the  latest    Ameri-  who  fraudulently  procurer!  a  settlement 

can  cases  the  disposition  is  strong  to  from  his  guardian   by  a  similar  false- 

hold  an   infant  apparently  of  age  and  hood    was    not    allowed    to    repudiate 

in   fact   Dearl}   BO,  liable  for  the  conse-  that  settlement  on  attaining  majority. 

qu<  rices  of  his  fraudulent  misrepreseuta-  Hayes  v.  Parker,  41  N.  .1.  Eq.  630. 
fcion  on  thai  point.    In  Indiana  an  infant         -  Dibble  v.  Jones,  5  Jones  Eq.  389. 
who  by  falsely  stating   himself   to   he         3  Sims  v.  Everhardt,  102  U.  S.  Supr 

of  age  obtained  property  for  which  he  300. 

his  worthless  note  and  mortgage,         4  Prouty  v.  Edgar,  6  Iowa,  353. 
[d  liable  i"  an  action  for  deceit.         °  1   Addis.  Torts,   712.     The  youth 

Rice  v.  Boyer,  108  Ind.  472;  cf.  Baker  of  a  person  injured  does  not  extend  the 

v.  Stone,  136  Mass.  405,  where  tin-  in-  liability  of  the  person  causing  the  in- 

f:n,t   did  in.;   misrepresent,  but  merely  jury,  for  the  tortious  acts  of  his  ser- 

knew  that  tin- adult  sii|i]ioscd  hini  to  he  vants.     Sherman    v.    Hannibal     1\.,    72 

of  age.    In  New  Jersey  an  infant  ward  Mo.  62.    And  see  post,  Part  VI.  c.  4. 

694 


CHAP.  IV.]    THE   INJURIES  AND   FRAUDS   OF   INFANTS.      §  428 

§  428.  Same  Subject  ;  Child's  Contributory  Negligence.  —  Thus 
it  is  held  that  a  child  eight  years  old  may  sue  one  who  sells  and 
delivers  to  him  a  dangerously  explosive  substance,  such  as  gun- 
powder, though  upon  his  own  request1  Such  actions  are 
grounded  upon  the  ignorance  of  the  child  and  the  negligence  of 
those  who  fail  to  regard  it. 

The  principle  involved  is  precisely  that  of  the  case  where  a 
man  delivers  a  cup  of  poison  to  an  idiot  or  puts  a  razor  into  the 
hand  of  an  infant  The  child  uses  that  ordinary  care  of  which 
he  is  presumed  capable  at  his  age  ;  and  though  this  may  amount, 
logically,  to  actual  carelessness  as  applied  among  adults  to  the 
ordinary  transactions  of  life,  his  right  of  action  is  not  thereby 
forfeited.2  Whoever,  then,  would  avoid  a  suit  like  this,  must 
regulate  his  own  discretion  to  suit  the  party  with  whom  he  deals, 
and  act  at  all  times  with  befitting  prudence.  Due  average  care 
according  to  age,  sex,  and  capacity,  is  all  that  the  law  exacts  of 
any  child  of  tender  years,  and  not  the  average  standard  for  adults, 
in  judging  of  the  child's  contributory  negligence  ;  and  wherever 
there  is  danger  to  which  the  infant  exposes  himself,  it  is  ma- 
terial to  consider  whether  his  judgment  and  reflection  were  suffi- 
ciently matured  to  make  that  danger  obvious.3  Children  under 
four  can  hardly  be  capable  of  prudence  or  rashness  at  all  as  to 
themselves. 

But  there  are  cases  where  the  child  himself  may  have  no  right 
of  action  for  injuries  received,  —  as  if  he  be  technically  a  tres- 
passer, and  meddling  with  property  which  does  not  belong  to 

As  to  prosecuting  such  suits  by  next  returned  the  property  received.     Shu- 
friend  &c,  see  §  450.  ford  v.  Alexander,  74  Ga.  293. 

As  to  action  for  malpractice  in  treat-  1  Carter  v.  Towne,  98  Mass.  567. 

ing  an  infant,  see  Force  v.  Gregory,  63  2  Byrne  v.  New  York.  Central  R.,  83 

Conn.  167.     The  fact  that  the  plaintiff  N.  Y.  620. 

is  a  minor  and  incapable  of  contracting  8  Railroad    Co.    v.   Young.    83    Ga, 

for  the  service,  or  that  the  father  called  512  ;  120  N.  Y.  526  ;  Illinois  Central  R 

the  physician,  constitutes    no   defence,  v.  Slater,  129  111.  91  ;  Greenway  v.  Con 

lb.;   97  Ala.    181.     Injury  to  a  young  roy,   160  Fenn.  St.  185;  83  Wis.  171 

child  by  leaving  team   unhitched.     43  119  Ind.  455;  77  Tex.  356;  123  N.  Y 

La.  Ann.  63.     Instigating  a  young  child  645.     In  setting  a  child  to  perform  a 

to  do  an  injurious  thing.     87  Cal.  545.  dangerous  service  the  above   principle 

Where   a  suit  is  prosecuted  on   an  applies,  and  due  warning  is  at  hast   in- 

infant's   behalf    to   recover    for    fraud  enmbent   upon  the   employer    in   such 

practised  upon  him,  it  is  no  defence  that  case.     119  Ind.  455;    84  Ga.  320;    56 

he  has  not  rescinded   the  contract  or  Ark.  232 ;  83  Tex.  598. 

695 


§  429  THE   DOMESTIC    RELATIONS.  [PART   V. 

him.  Of  this  rule  an  English  case  affords  an  example,  where  a 
boy,  four  years  old,  coming  from  school,  saw  a  machine  exposed 
for  sale  in  a  public  place,  and  by  direction  of  his  brother,  seven 
years  old,  placed  his  fingers  within  the  machine  whilst  another 
turned  the  crank  and  thereby  crushed  his  fingers.1  The  court 
held  that  no  action  would  lie.  But  if  the  trespass  of  the  infant 
does  not  substantially  contribute  to  produce  the  injury,  it  would 
appear  that  no  defence  can  be  legally  interposed  on  this  ground.2 
Thus  the  mere  fact  that  a  youth  gets  upon  a  railroad  car  intend- 
ing to  ride  without  paying  fare  is  held  not  to  bring  the  case 
within  the  rule  of  trespass  or  contributory  negligence.3  And 
late  American  cases  go  so  far  as  to  assert  that  a  young  child,  even 
though  a  technical  trespasser,  may  recover  for  injuries  where  an 
adult  might  not ;  and  this  upon  the  ground  that  the  defendant 
had  placed  something  dangerous  or  in  a  dangerous  condition  to 
which  children  were  readily  attracted.4 

§  429.  Same  Subject  ;  Contributory  Negligence  of  Parent,  Pro- 
tector, &c.  —  Another  and  the  more  common  class  of  exceptions 
consists  of  cases  where  the  parents  or  other  persons  having  charge 
of  the  child  have  been  guilty  of  negligence.  The  rule  of  New 
York,  Massachusetts,  Illinois,  and  some  other  States  is  that  a 
child  too  young  to  have  discretion  for  himself  cannot  recover  if 
his  protector  fails  to  exercise  ordinary  care,  but  that  he  may  if 
he  uses  such  care  as  is  usual  with  children  of  the  same  age,  and 
the  protector  exercises  ordinary  care  besides.5     The  English  rule, 

1  Mangan  v.  Atterton,  L.  R.  1   Ex.  It  is  sometimes  hard  to  draw  the  line 

239.     And  see  Hughes  v.  McFie,  2  H.  between  a  child's  wrong-doing  and  con- 

&  C.  744;  33  L.  J.  (Ex.)  177.  tributary  negligence  in  snch  cases;  but 

'-'  See  Daley  i\  Norwich  &  Worcester  the  rule  of  trespass  should  avail  as  a 

R.  R.  Co.,  26  Conn.  591.  defence,  within  fair  limits,  for  uninten- 

:!  Kline  v.  Central  Pacific  R.  R.  Co.,  tional   injury.      These    tort    suits    are 

37   Cal.  400.     See   Townley  v.  Chicago  constantly  on   the  increase.     Presump- 

R.,  53  Wis.  626.  tions  under  the  principle  of  a  growing 

4  Hue-ley  v,   Winona  R.,  46  Minn,  discretion    during    infancy    have    been 

233;  City  of  Pekin  w.  McMahon  (1894)  already  considered.     §392.    Yet  these 

III.;    Penso    v.    McCormick,    1 25    [nd.  are  presumptions  only;   and   in   these 

116.     Sec  rule  stated  in  McCarragher  civil  actions  the  law  fixes  no  arbitrary 

'-.  i  jo  \.  V.  526.     Hut  cf. cases  rule      See  115  N.  Y.  104. 

where  the  child  iras  debarred  as  a  tres-         6  Wright  v.  Maiden  &  Melrose  R. 

:      Rodgers  v.  Lees,  iiolYnn.  St.  Co.,  4  Allen,  283;  Hartfield  v.  Koper, 

475;  McGuinesa  v.   Butler,  159  Mass.  21   Wend.  617;    Downs  v.  New  York 

883,    and    casee   cited;    150    Mass.   515.  Central    K.    II.  Co.,  47   N    Y.  83;  Ken 

696 


CHAP.  IV.]    THE   INJURIES  AND  FRAUDS   OF  INFANTS.      §  429 

as  formerly  understood,  does  not  take  into  consideration  the  cir- 
cumstance of  the  protector's  negligence  at  all.1  And  in  various 
American  States  the  child's  exercise  of  ordinary  care  appears 
alone  to  be  regarded.2  The  latest  English  cases,  however,  lean 
toward  the  doctrine  first  above  stated.  Thus,  when  the  child,  at 
the  time  of  injury,  was  in  the  care  of  his  grandmother,  at  a  rail- 
road station,  where  she  had  purchased  tickets  for  both,  it  was 
held  that  the  plaintiff  was  so  identified  with  his  grandmother 
that,  by  reason  of  her  negligence,  no  suit  was  maintainable 
against  the  company.3 

Where  carelessness  of  a  mother  or  other  protector  is  alleged, 
in  authorizing  an  exposure  of  the  child,  it  may  sometimes  be 
said  that  the  father  or  proper  parent  or  guardian  had  conferred 
no  authority.4  To  take  common  illustrations  of  this  doctrine 
Allowing  a  child  seventeen  months  or  even  two  or  three 
years  old  to  be  in  the  public  street  of  a  city  without  a  suitable 
attendant  is  held  to  be  a  want  of  ordinary  care  on  the  parents' 
part,  and  if  the  child  be  run  over  there  is  no  remedy.5  But 
there  are  circumstances  under  which  it  would  be  found  that  the 
parent  or  protector  of  such  a  child  was  exercising  ordinary  care ; 
while  the  child  himself  would  be  treated,  doubtless,  as  incapable 
of  personal  negligence  at  so  early  an  age,  so  as  to  defeat  his 
right  of  action.6  Suffering  a  boy  eight  or  ten  years  old  to  play 
on  the  street  after  dark  is  not  necessarily  negligence  on  the  pro- 
tector's part.7      And  even  as  to  children  four  years  of  age  or 

v.  Forgne,  54  111.  482 ;  Schmidt  v.  Mil-         3  \yaite  v.  North-Eastern  R.  R.  Co., 

waukie,  &c.   R.   R.   Co.,  23   Wis.  186  ;  5  Jur.  n.  s.  936. 

O'Flaherty  v.  Union  R.  R.  Co.,  45  Mo.  *  Pierce  v.  Millay,  62111.  133. 

70 ;  Baltimore,  &c.  R.  R,  Co.  v.  State,  &  Kreig  v.  Wells,  1  E.  D.  Smith,  74 ; 

30   Md.    47;  Munn  v.  Reed,  4  Allen,  Casey  v.  Smith,    152   Mass.    294;    160 

431;  Lehman  v.  Brooklyn,  29  Barb.  236  ;  Penn.  St.  647.     Otherwise  as  to  leaving 

City  of  Chicago  v.  Starr,  42  111.  174.  a  child  three  years  of  age  to  play  inside 

1  Lynch  v.  Nurdin,  1  Q.  B.  29.  the  gate,  when,  unknown  to  the  parent, 
Doubted,  however,  in  Lygo  v.  Newbold,  a  large  hole  had  been  dug  jnst  outside 
9  Exch.  302.  into  which  the  child   fell.     156  Mass. 

2  Robinson    v.   Cone,    22    Vt.    213;  291. 

North  Penn.  R.  R.  Co.  v.  Mahoney,  57  6  See  Mangam  v.  Brooklyn  R.   R. 

Penn.  St.  187  ;  Bellefontaine,  &c.  R.  R.  Co.,  38  N.  Y.  455  ;  Schmidt  i>.  Milwau- 

Co.  v.  Snyder,  18  Ohio  St.  399;  Daley  kie,  &c.  R.  R.  Co.,  23  Wis.  186. 

v  Norwich   &  Worcester  R.  R.  Co.  26  7  Lovett  v.  Salem,  &c.  R.  R.  Co.,  9 

Conn.  591.     But  see  Bronson  v.  South-  Allen,  557. 

bury,  37  Conn.  199. 

697 


§429 


THE    DOMESTIC    RELATIONS. 


[PART    V. 


thereabouts,  or  perhaps  younger,  it  is  uot  expected  that  parents 
who  have  to  labor  for  themselves  and  cannot  hire  nurses  are  to 
be  without  remedy  for  themselves  or  their  children  every  time 
the  child  steps  into  the  street  unattended.  What  would  be  ex- 
pected of  the  custodians  of  these  tender  beings  is  a  degree  of 
care  or  diligence  suitable  to  the  capacity  of  the  child ;  in  other 
words,  ordinary  care  and  prudence  in  watching  and  controlling 
the  child's  movements.1  This  care  and  prudence  should  be  pro- 
portionate to  known  dangers  or  to  dangers  which  ordinary  dili- 
gence might  have  made  known  to  the  custodian.2  As  to  a  child 
some  twelve  years  of  age  travelling  with  his  mother,  and  injured 
in  stepping  between  cars,  the  right  to  sue  is  not  necessarily  de- 
feated for  the  reason  that  she  permitted  him  to  go  into  another 
car  from  that  where  she  was  sitting,  and  he  did  so.3  In  fact, 
the  circumstances  of  each  case  are  fairly  to  be  weighed  by  the 
jury.  No  child  capable  of  running  about  can  be  kept  tied  up  in 
the  house  and  subjected  to  constant  watch.  The  rule  is  to  be 
reasonably  and  beneficially  applied  ;  and  the  circumstances  are 
in  general  for  the  jury.4     The  older  and  more  capable  the  child, 


1  City  of  Chicago  v.  Major,  18  111. 
360;  O'FIaherty  v.  Union  R.  R.  Co..  45 
Mo.  70;  Baltimore,  &c.  R.  R.  Co.  v. 
State,  30  Md.  47  ;  129  111.  91. 

-  Louisville  R.  v.  Shanks,  132  Ind. 
395.  As  to  the  unforeseen  use  of  a  toy 
air-gnn  bought  by  the  parent,  see  81 
Wis.  239;  88  Mich.  225. 

3  Downs  v.  N.  Y.  Central  R.  Co.,  47 
N.  V.  83. 

4  The  principle  may  he  further  illus- 
trated by  an  Illinois  case.  A  heavy 
counter,  some  eighteen  feet  long  and 
three  feet  high,  which  had  been  placed 
across  the  sidewalk  in  one  of  the  prin- 
cipal thoroughfares  of  Chicago,  re- 
mained so  for  two  or  three  weeks,  when 
some  children  were  climbing  upon  it 
and  thereby  caused  it  to  fall  over.  One 
of  the  children,  six  years  old,  was  in- 
jured and  died,  and  the  parents  sued 
the  city,  under  statute,  fur  damages 
The  COUrt    held,  upon    the  state  (if    facts 

before  them,  thai  the  action  would  not 
lie  because  there  was  negligence  shown 

698 


on  both  sides,  — on  the  part  of  the  city 
in  allowing  the  counter  to  remain  in 
that  situation,  and  on  the  part  of  the 
parents  in  permitting  the  child,  at  his 
age,  to  roam  the  crowded  thoroughfares 
of  the  city  at  a  great  distance  from  his 
home.  The  negligence  on  the  part  of 
the  city  was  less  than  that  attributable 
to  the  child's  parents,  and  therefore 
there  could  be  no  recovery.  City  of 
Chicago  v.  Starr,  42  111.  174.  In  this 
case  it  was  further  suggested  that  the 
degree  of  carelessness  is  nol  to  be  judged 
from  a  single  fatal  accident ;  but  that 
the  question  is  rather  what  would  have 
been  the  course  of  a  prudent  person 
prior  to  the  accident.  And  the  habitual 
carelessness  of  the  parents  in  allowing 
the  child  to  go  about  unattended  was 
considered  material.  But  see  Kerr  v. 
Forgue,    ">4    111.  4S2,   limiting  the    rule. 

Perhaps  the  course  most  consistent  with 
the  latesl  authorities  is  to  leave  the 
question  of  negligence,  so  far  as  pos- 
sible, with  the  jury,  upon  the  state  of 


CHAP.  IV.]    THE    INJURIES  AND  FRAUDS   OF  INFANTS.      §  430 

the  less  pertinent  is  of  course  the  question  of  a  custodian's 
prudence.  And  wherever  the  child  himself  exercised  due 
care  and  prudence  in  fact,  the  care  and  diligence  of  a  protector 
might  well  become  immaterial  in  a  suit  for  the  child's  own 
injury.1 

Causa  proximo,  non  rcmota  spectator  is  the  maxim  usually  ap- 
plied in  cases  of  torts,  whether  the  plaintiff  be  infant  or  adult. 
But  where  the  tort  is  occasioned  by  the  negligence  of  one  person, 
the  infant  is  not  debarred  of  his  right  to  sue  the  other  part}'  who 
shared  in  it.  As  where  a  child  too  youug  to  take  care  of  himself 
—  there  being,  we  shall  suppose,  no  negligence  on  the  part  of 
the  parent  —  is  in  danger  of  being  run  over  by  a  steam-engine, 
and  some  stranger  catches  him  up,  meaning  to  save  his  life,  and 
imprudently  rushes  over  the  track  and  falls  with  the  child.  An 
accident  so  occasioned  might,  under  some  such  circumstances, 
give  a  right  of  action  against  either  the  stranger  or  the  railroad 
company,  or  against  them  jointly.2 

§  430.  Suits  of  Parent  and  Child  for  Injury  ;  Loss  of  Services 
reckoned.  —  We  have  already  seen   that  a  parent  may  sue  for 


facts  presented.  See  further,  Weeks  v. 
Paciric  R.,  50  Cal.  513  ;  Murley  v.  Roche, 
130  Mass.  330;  86  Ga.  40;  §  42S ;  120 
N.  Y.  526  ;  81  Iowa,  1  ;  78  Cal.  578 

1  Chicago  R.  v.  Robinson,  127  111.  9. 
A  statute  suit  by  the  administrator  of  a 
chilil  who  was  killed  is  uot  debarred  by 
the  consideration  that  a  negligent  parent 
will  inherit.  78  Iowa,  396.  In  New- 
man v.  Phillipsburg  R.  52  N.  J.  L.  446, 
the  above  doctrine  of  imputing  the  mis- 
feasance of  a  child's  custodian  to  the  child 
itself  so  as  to  defeat  the  hitter's  right  of 
action  is  deemed  to  be  an  interpolation 
into  the  law ;  with  chief  pertinence, 
perhaps,  where  the  child  himself  was 
actually  careful.  See  also  127  111.  9  ; 
66  Miss.  560;  69  Miss.  126.  Such 
parental  misfeasance  ought  to  bar  the 
parent's  own  suit,  at  all  events ;  even 
though  it  should  not  that  of  the  child. 
138  HI.  370.  The  doctrine  of  imputed 
negligence  has  been  repudiated  in 
various  States.  89  Va.  780;  cases 
supra. 


2  See  North  Penn.  R,  R.  Co.  v.  Ma- 
honey.  57  Penn.  St.  187.  The  views 
expressed  in  this  case  may  noi  meet,  in 
all  respects,  the  concurrence  of  other 
courts;  but  the  principle  extracted  in 
the  text  seems  to  the  writer  a  correct 
one.  See  further,  as  to  slander  of  an 
infant,  Hopkins  v.  Virgin,  11  Bush, 
677.  As  to  injury  done  to  a  minor 
servant,  see  I)e  Graff  v.  N.  Y.  Central 
R.,  76  N.  Y.  125;  Cooper  v.  State,  8 
Baxt.  324  ;  post,  Part  VI. 

A  parent  who  knowingly  allows  his 
young  child  to  remain  in  a  dangerous 
employment  with  mt  objection  debars 
himself  of  suit  by  his  own  negligence. 
122  Penn.  St  57.  But  where  one  em- 
ploys a  minor  knowingly  in  a  dangerous 
business  without  his  father's  consent  or 
knowledge,  be  becomes  liable  to  the 
father's  suit  in  case  of  injury.  Texas 
R.v.  Brick,  83  Tex.  526.  Concerning  the 
child's  knowledge  of  danger  as  affecting 
his  own  suit  for  damages,  see  §  428. 

699 


§431 


THE   DOMESTIC   RELATIONS. 


[PART  V. 


damages  caused  his  child  by  another's  wrong,  as  for  loss  of  his 
child's  services  during  the  period  of  minority,  since  such  services 
belong  to  the  parent.1  But  for  damage  to  the  person  involving 
a  permanent  injury  reaching  beyond  one's  minority,  the  minor  is 
entitled  in  his  own  right  to  recompense  for  such  prospective  loss.2 
A  double  recovery  for  loss  of  the  child's  services  during  minority 
is  not  permitted.3 

§  431.  Arbitration,  Compromise,  and  Settlement  of  Injuries 
committed  or  suffered  by  Infants.  — While  an  infant  is  liable  for 
torts,  it  does  not  follow  that  his  contracts  in  compensation  for 
torts  are  binding.  In  fact,  his  submission  to  an  award,  and 
notes  given  or  money  paid  in  pursuance  thereof,  would  follow 
the  principle  of  void  and  voidable  and  binding  contracts;4  and, 
as  we  may  presume,  a  note  or  other  security  given  to  settle 
damages  may  not  be  sued  upon  without  inquiry  into  its  consider- 
ation, but  it  shall  be  good  to  the  same  extent  as  the  tort  which 
constituted  its  basis.5  And  on  the  other  hand,  where  he  releases 
or  compromises  for  any  injury  himself  has  sustained,  the  same 
rule  applies.6  The  parent  cannot  sue,  as  such,  for  the  child's 
injuries;  neither  can  he  make  a  binding  compromise  or  release, 
except  as  to  his  own  demand  upon  the  defendant.7 


1  Part  III.  c.  4,  supra. 

2  Central  R.  R.  v.  Brimson,  64  Ga. 
475,  ami  cases  cited. 

3  91  Mich.  298.  See  Judd  v.  Bal- 
lard (1894),  Vt. 

*  Hanks  v.  Deal,  3  M'Cord,  257; 
Pitcher  v.  Turin  Plank  Road  Co.,  10 
Barb.  436 ;  Ware  v.  Cartledge,  24  Ala. 
622. 

6  See  Hay  v.  Tubbs,  50  Vt.  688  ; 
tupra,  §  414.  The  withdrawal  of  a 
Buit  against  a  minor  child,  without  fur- 
ther costs,  is  sufficient  consideration  for 
the  father's  note  in  settlement.  Mas- 
colo  v.  Montesanto,  61  Conn.  50. 

700 


6  Baker  v.  Lovett,  6  Mass.  78.  Cf. 
Cadwallader  v.  McClay,  37  Neb.  359, 
as  to  attempting  fraud  in  settling  a 
suit.  Infant's  right  to  sue  for  wrong 
is  barred  by  limitations.     158  Mass.  54. 

7  See  Loomis  v.  Cline,  4  Barb.  453  ; 
Passenger  R.  R.  Co.  v.  Stutler,  54  Penn. 
St.  375  ;  82  Tex.  623.  But  see  Merritt 
v.  Williams,  1  Harp.  Ch.  306.  Such  is  the 
general  rule  as  to  next  friend.  §  450; 
Tripp  v.  Gifford,  155  Mass.  108  ;  149 
Penn.  St.  24.  There  should  be  judicial 
sanction  to  such  compromise. 


CHAP.  V.]      RATIFICATION,   ETC.,   OF   CONTRACTS.  §  4C3 


CHAPTER  V. 

RATIFICATION  AND  AVOIDANCE  OF  INFANT'S  ACTS  AND 
CONTRACTS. 

§  432.  Infants  may  ratify  or  disaffirm  Voidable  Acts  and 
Contracts.  —  That  indulgence  which  the  law  allows  infants,  to- 
secure  them  from  the  fraud  and  imposition  of  others,  can  only 
be  intended  for  their  benefit,  and  therefore  persons  of  riper  years 
cannot  take  advantage  of  such  transactions.  The  infant  may 
rescind  or  disaffirm  his  own  deed  or  contract ;  but  the  adult 
with  whom  he  deals  is  held  bound  meantime,  unless  the  trans- 
action be  void,  and  not  voidable,1  or  one  of  those  contracts 
which  bind  an  infant  from  the  outset.2  And  since,  as  we  have 
observed,  his  conveyance  is  not  to  be  decisively  repudiated  or 
ratified  till  his  minority  ends,  while  his  personal  property  trans- 
actions or  personal  transactions  may  be  avoided  any  time 
though  not  ratified,3  the  act  of  ratifying  or  affirming  bears  differ- 
ently in  its  application. 

But  the  infant  may  confirm  his  voidable  contract  on  arriving 
at  full  age  ;  and  if  he  does  so  by  such  writings,  words,  or  acts  as 
amount  to  a  legal  ratification  or  affirmance,  he  will  become  lia- 
ble then  and  thereafter.  But  what  is  in  law  a  sufficient  ratifica- 
tion or  affirmance  and  what,  too,  is  a  sufficient  avoidance, 
remain  to  be  considered. 

§  433.  Rule  affected  by  Statute ;  Lord  Tenterden's  Act ; 
Other  Statutes. — Much  of  the  discussion  on  this  point  is  now 
dispensed  with,  or  rather  diverted,  in  England,  by  a  short  stat- 
ute to  the  effect  that  "  no  action  shall  be  maintained  whereby  to 
charge  any  person  upon  any  promise  made  after  full  age  to  pay 
any  debt  contracted  during  infancy,  or   upon  any   ratification, 

1  Smith   v.  Bowen,  1    Mod.   25 ;    2  a  Supra,  c.  3. 

Kent,  Com.  23G ;  Warwick  v.  Bruce,  2  8  Supra,  §  409. 

M.  &  S.   205;    Brown    v.  Caldwell,   10 
S.  &  R.  114 ;  supra,  c.  2 ;  56  Ark.  49. 

701 


§  433  THE   DOMESTIC    RELATIONS.  [PART  V. 

after  full  age,  of  any  promise  or  simple  contract  made  during 
infancy,  unless  such  promise  or  ratification  shall  be  made  by 
some  writing,  signed  by  the  party  to  be  charged  therewith."1 
This  statute  is  known  as  Lord  Tenterden's  Act.  Here  is  a 
clear,  precise,  and  definite  rule ;  and  any  apparent  want  of  equi- 
ty is  compensated  by  the  certainty  with  which  a  very  trouble- 
some subject  is  managed,  one  which  has  so  constantly  led  to 
unprofitable  litigation.  The  same  or  similar  provisions  are  to 
be  found  in  the  laws  of  some  of  our  States.2 

But  even  statutes  will  raise  legal  difficulties.  And  the  diffi- 
culty which  arises  under  this  particular  act  is  to  distinguish 
ratification  from  a  new  promise.  What  is  meant  by  a  "  ratifica- 
tion "  in  the  words  of  this  statute  ?  The  Court  of  Exchequer, 
some  years  since,  admitting,  in  the  course  of  argument,  that  the 
statute  made  a  distinction  between  ratification  and  new  prom- 
ises, gave  it  as  their  opinion  that  any  act  or  declaration  which 
recognizes  the  existence  of  a  promise  as  binding,  is  a  ratification 
of  it ;  and  that  the  statute  "  ratification  "  goes  so  far  as  to  com- 
prehend such  a  ratification  as  would  make  a  person  liable  as 
principal  for  an  act  done  by  another  in  his  name.3  And  hence 
certain  letters  written  by  the  defendant  in  reference  to  payment 
of  his  debt  out  of  his  money  in  the  hands  of  a  third  party  were 
held  binding.  More  lately  this  definition  of  ratification  was 
reconsidered  by  the  same  court  in  another  case,  where  the  cor- 
respondence was  over  a  dishonored  bill  of  exchange,  and  another 
person,  not  the  infant,  was  to  be  primarily  liable ;  and  the 
judges  were  divided  in  opinion.  But  the  disposition  seemed  to 
be  to  define  ratification  anew,  as  a  willing  admission  that  the 
party  is  liable  and  bound  to  pay  the  debt  arising  from  a  con- 
tract which  lie  made  when  an  infant,4     Still  later  a  man,  being 

I  Stat.  9  Geo.  IV.  c.  14,  §  5  (1828).  v.   Armstrong,  1   M.   &  S.  724.     As  to 

-Sri-   Thurlow  '-.  Gilraore,  40  Mo.  what   is  a  sufficient  compliance   with 

378  the  statute,  see  Hartley  v.  Wharton,  11 

;   Harris  t;.  Wall,  1  Exch.  122.  Ad.  &  EL  934  ;    Hyde   v.   Johnson,   2 

'  Mawson  v.   Ulan.',   io  Exch.  200;  Bing.  N.  C.  778 ;  Hunt  v.  Massey,  5  B. 

26    E.    I..   &    Eq.    560.      See,   further,  &  Ad.  902. 

Smith,  Contr.  287.     Lord  Ellenhorough  Sec  also  Infants'  Relief  Act  of  1874 

considered  it   more  correct   to   Bay,    in  (87  &  38  Vict.  c.  62);  Smith  r.  King, 

general,  thai   the  infant  makes  a  new  |i*'.>2]  2  Q.  15.  543.    As  to  what  cou- 

promiie  aftei  be  comes  of  age.    Cohen  stitutes  ratification  or  a  fresh  promise 
702 


CHAP.  V.]       RATIFICATION,    ETC.,   OF   CONTRACTS.  §  434 

of  age,  signed  the  following  statement  at  the  foot  of  an  account 
of  the  items  and  prices  of  goods  furnished  to  him  while  an  in- 
fant by  the  plaintiff :  "Particulars  of  account  to  the  end  of  1807, 
amounting  to  £162  lis.  6d.  I  certify  to  be  correct  and  .satisfac- 
tory." It  was  held  that  this  was  not  a  sufficient  ratification 
under  the  statute,  because  these  words  did  not  really  admit  the 
debt  to  be  a  debt  existing  and  binding  upon  the  defendant.1 

Some  statutes  regard  the  allowance  of  only  a  reasonable  time 
after  attaining  majority  for  disaffirmance  of  a  contract  or  con- 
veyance made  in  infancy,  requiring  the  infant  both  to  disaffirm 
and  to  make  restitution.2  Others  seek  to  prevent  sales  of  the 
minor's  property  for  some  time  after  he  reaches  majority.3 

§  434.  Rule  Independent  of  Statute  ;  American  Doctrine.  — 
Independently  of  all  statutes,  however,  the  question  has  been 
asked  again  and  again,  what  language  and  what  conduct  on  the 
part  of  the  infant  attaining  to  majority  will  suffice  to  give  bind- 
ing force  to  his  acts  originally  voidable.  The  American  cases 
on  this  point  are  very  numerous.  And  it  must  be  confessed 
that  the  more  this  subject  has  been  discussed,  the  less  it  appears 
to  be  understood.  Two  principles  are  evidently  in  conflict :  the 
one,  that  an  infant  should  be  protected  against  his  own  impru- 
dence while  under  a  disability  ;  the  other,  that  bona  fide  credi- 
tors ought  not  to  be  cheated.  Some  cases  have  given  more 
prominence  to  the  first  principle,  others  to  the  second. 

There  cannot  be  much  doubt  that  at  the  time  Lord  Tenter- 
den's  Act  was  passed,  the  English  rule  was,  that  an  infant 
might,  by  his  general  conduct,  independently  of  a  precise  prom- 
ise or  new  contract,  on  his  part,  render  himself  liable  for  his 
contracts    made  while  an    infant.4     The  statute  was  passed  to 

upon  majority,  under  English  statutes,  1  Rowew.  Hopwood,  L.  R.  4  Q.  R.  1. 

of  an  infant's  promise   to   marry,  see  -  Wright  v.  Germain,  21  Iowa,  585; 

Ditcham  v.  Worrall,  5  C.   P.  D.  410;  Jones  v.  Jones,  46  Iowa,  466;  04  Iowa, 

Northcote  v.  Doughty,  L.  R.  4  C.  P.  D.  315.      Disaffirmance    under    the    code 

385.     As   to   ratifying   as  "a   debt   of  should   be   within    a    reasonable   time, 

honor,"    see    Maccord    v.    Osborne,    1  55  Iowa,  205 ;  59  Iowa,  (179. 
C.  P.  D.  569.     And  see  In  re  Onslow,  8  Soullier  v.  Kern,  69  Penn.  St.  16. 

L.  R.   10  Ch.  373.     The  inclination  of  4  See  Goode  v.  Harrison,  5  E.  &  Aid 

these   late   English    cases   is   to   insist  147 ;  Smith,  Contr.  283,  284. 
upon  something  like  a  fresli  promise  in 
order  to  bind. 

703 


§  434  THE   DOMESTIC   RELATIONS.  [PART  V. 

change  this  rule.  On  that  point  we  need  not  dwell.  This  does 
not  bind  American  courts,  it  is  true,  for  they  had  adopted,  in 
many  instances,  another  rule  of  the  common  law,  to  which  they 
were  at  liberty  to  adhere,  in  spite  of  the  later  English  decisions  ; 
since  it  was  the  rule  our  ancestors  brought  over  with  them. 

Now,  what  is  the  American  doctrine  ?  We  take  a  case  de- 
cided some  years  ago  in  Massachusetts,  where  an  infant  had 
made  a  promissory  note,  and  after  majority  admitted  several  times 
that  he  owed  the  debt,  and  said  he  would  pay  it  when  he  could. 
Says  the  court :  "  It  has  long  been  settled  that  a  direct  promise, 
when  of  age,  is  necessary  to  establish  a  contract  made  during 
minority,  and  that  a  mere  acknowledgment  will  not  have  that 
effect."  1  We  take  still  another,  decided  in  New  York  only  a  little 
later.  Says  a  judge  of  the  Court  of  Appeals,  after  a  most  ex- 
haustive review  of  the  cases  :  "  I  think  that  the  course  of  deci- 
sion in  this  State  authorizes  us  to  assume  that  the  narrow  and 
stringent  rule,  formerly  enunciated,  that  to  establish  the  con- 
tract, when  made  in  infancy,  there  must  be  a  precise  and  posi- 
tive promise  to  pay  the  particular  debt,  after  attaining  majority,  is 
not  sustained  by  the  more  modern  decisions."  2  Time  has  not 
with  us  lessened  the  force  of  Chancellor  Kent's  observation, 
many  years  ago,  that  "  the  books  appear  to  leave  the  question 
in  some  obscurity,  when  and  to  what  extent  a  positive  act  on 
the  part  of  the  infant  is  requisite."  3 

It  may  be  remarked  that  a  great  change  was  gradually  devel- 
oped in  the  law  of  infancy,  by  making  various  contracts  and 
transactions  voidable  which  before  were  deemed  void.4  This 
might  reasonably  be  thought  to  have  introduced  a  new  element 
into  the  consideration  of  such  cases ;  the  result  tending  towards 
freedom  in  the  courts,  and  enabling  them  to  repudiate  artificial 
refinements  and  do  substantial  justice.  It  certainly  throws 
upon  the  modern  courts  a  greater  responsibility  than  formerly 
in  ruling  between  complete  and  incomplete  ratification;  or  (if 
Legal    precision    requires   another   expression),    in   determining 

1   Proctor  v.  Sears,  4  Allen,  95  (1862),         8  2  Kent,  Com.  237. 
per  Metcalf ,  J.  4  See  c.  2,  sujira. 

'-'   Per  D;ivir«,  J.,   Henry  v.  Koot,  33 
N.  V.  545  | I 

701 


CHAP.  V.]       RATIFICATION,   ETC.,   OF   CONTRACTS.  §  435 

whether  a  new  promise  lias  passed  from  the  person  after  attain- 
ing full  age.  But  this  change  has  not  always  been  kept  in  view. 
In  New  York  the  modern  doctrine  is  that  ratification  or  confir- 
mation of  the  contract  made  in  infancy  will  bind  the  party  if  it 
take  place  after  his  coming  of  age ;  that  a  new  promise,  positive 
and  precise,  equivalent  to  a  new  contract,  is  not  now  essential ; 
but  that  a  ratification  or  confirmation  of  what  was  done  during 
the  minority  is  sufficient  to  make  the  contract  obligatory.1  And 
it  is  well  observed  that  the  words  "  ratify  and  confirm  "  neces- 
sarily import  that  there  was  something  in  existence  to  which 
the  ratification  or  confirmation  could  attach,  entirety  ignoring 
therefore  the  notion  that  an  infant's  obligations  or  contracts 
were  nullified  by  the  state  of  infancy.2  But  it  must  be 
borne  in  mind  that  in  some  other  States  the  rule  is  quite  dif- 
ferent. So  that  we  have  nothing  which  may  safely  be  pro- 
nounced the  American  doctrine  upon  this  subject. 

§  435.  The  Same  Subject ;  Instances.  —  It  seems  settled 
that  silence  for  an  unreasonable  time,  taken  in  connection'  with 
other  facts,  such  as  using  the  property  purchased,  retaining  pos- 
session of  it,  selling  or  mortgaging  it,  or  in  any  way  converting 
it  to  the  infant  purchaser's  own  use,  would  be  sufficient  ratifica- 
tion to  bind  the  infant  after  reaching  manhood.3  As  where  a 
minor  bought  a  yoke  of  oxen,  for  which  he  gave  his  note,  and 
after  arriving  at  full  age  converted  the  oxen  to  his  own  use  and 
received  the  avails.4  Mere  lapse  of  time,  it  is  true,  will  not 
usually  amount  to  confirmation,  unless  the  complete  bar  of 
limitations  is  fulfilled.5  But  a  brief  lapse  of  time,  in  connection 
with  other  circumstances  making  the  infant's  position  inequita- 
table  if  he  means  later  to  disaffirm,  may  amount  to  confirmation.8 

1  Henry  v.  Root,  33  N.  Y.  526.  And  see  Alexander  v.  Heriot,  1  Bail. 

2  lb.  Ch.  223  ;  Deason  v.  Boyd,  1  Dana.  45 ; 
a  See  note  Am.  editor  in  16  E.  L.  &     Vandevort's  Appeal,  43  Penn   St.  462  ; 

Eq.  558  ;  Lawson  v.  Lovejoy,  8  Me.  405 ;  Stern  v.  Freeman,  4   Met.   (Ky.)  309; 

Boyden  v.  Boyden,  9  Met.  519;  Che-  Belton  v.  Briggs,  4  Desaus.  465. 
shire  v.  Barrett,  4  M'Cord,  241  ;  Boody         °  Wallace  v.  Latham,  52  Miss.  291  ; 

v.   McKenney,  23  Me.  517;    Robinson  Prout  v.  Wiley,    28    Mich.    J  64;   cases 

v.   Hoskins,    14    Bush,    393.      Against  cited  in  31  Minn.  468. 
third   parties   averment    of    possession  6  Cresinger  v.  Welch,  15  Ohio,  156  : 

may    be   sufficient   averment   of   ratifi-  Strong.  J.,  in  Irvine  v.  Irvine,  9  Wall 

cation.     33  La.  Ann.  102.  617  ;  Goodnow  v.  Empire  Lumber  Co, 

4  Lawson    v.   Lovejoy,    8    Me.   403.  31  Minn.  468. 

45  705 


§  435  THE   DOMESTIC   RELATIONS.  [PART   V. 

And  cases  are  not  wanting  to  establish  the  position  that  ratifi- 
cation will  be  inferred  from  tacit  assent  and  delay  under  cir- 
cumstances where  silence  is  not  excusable,  where  there  was  full 
knowledge  and  opportunity  to  assert  one's  rights,  and  the  party 
whose  title  might  have  been  disputed  was  permitted  to  go  on 
incurring  expense  on  the  faith  of  it.1 

Yet  that  the  cases  are  somewhat  conflicting  and  difficult  in 
this  respect  to  be  reconciled  will  appear  from  the  citation  of  a 
few.  In  Alabama,  an  infant,  ten  days  before  majority,  purchased 
a  note  and  drew  an  order  upon  a  third  person  in  payment,  and 
received  notice  of  nonpayment.  It  was  held,  in  a  suit  several 
years  after,  that  his  failure  to  renew  the  note  and  disaffirm 
warranted  the  conclusion  that  he  intended  to  abide  by  it.2  Still 
more  rigidly  was  the  same  doctrine  enforced  in  an  earlier  New 
York  case.3  Part-payment,  or  even  promise  of  part-payment, 
may  operate  as  confirmation.4  So  may  authority  given  to  an 
agent  to  pay,  though  the  agent  does  nothing.5  But  declara- 
tions of  affirmance  by  one  purporting  to  act  as  the  attorney 
or  solicitor  of  the  late  infant  do  not  amount  to  ratification 
if  his  authority  be  not  proved.6  Submitting  the  question  of 
liability,  after  coming  of  age,  to  arbitration  or  offering  to  com- 
promise does  not  amount  to  ratification.7  But  letters  indicating 
intent  to  abide  by  a  former  award  may ;  as  well  as  the  enjoy- 
ment of  its  benefits.8  So  may  permitting  an  action  growing  out 
of  the  transaction  to  go  by  default,  or  a  bill  in  equity  to  be 
taken  as  confessed.9  A  promise  to  settle  by  note  against  a  third 
party  is  held  sufficient.10  So  is  a  promise  to  settle  by  work.11 
Nor  do  the  recent  cases  seem  to  require  that  a  promise  to  settle 
should  be  very  precisely  expressed.  The  mere  retention  of 
consideration-money  received  during  infancy  appears  to  amount 
to  ratification  in  California ; 12    though  this  is  not  the  general 

1  See  post,  §  438 ;  Allen  v.  Poole,  54  "  Benham  v.  Bishop,  9  Conn.  330  ; 

Miss.  .-ii'.'J.  Bennett  v.  Collins,  52  Conn.  1. 

-  Thomasson  v.  Boyd,  13  Ala.  419.  8  Barnaby  v.  Barnabv,  1  Pick.  221 ; 

»  Delano  v.  Blake,  1 1  Wend.  85.  Jones  v.  Phoenix  Bank,  4  Seld.  228. 

4  Little   v,    Duncan,   9    Rich.   Law,  9  Terry    v.    McClintock,    41    Mich. 

65;  Stokes  v.  Brown,  4  Chand.  (Wis.)  492. 

89.  io  Taft  v.  Sergeant,  18  Barb.  320. 

B  Orvia  v.  Kimball,  8  N.  II.  314.  "  Edgerly  v.  Shuw,  5  Post.  514. 

c  Carrel!  v.  Potter,  23  Mich.  377.  u  Hastings  v.  Dollarlii.le,  2  4  Cal.  195. 
706 


CHAP.  V.]       RATIFICATION,   ETC.,    OF    CONTRACTS.  §  435 

rule  elsewhere.1  Keeping  and  using  an  article  purchased  during 
infancy,  with  equivocal  expressions  of  intention,  may  bind  the 
infant  so  that  be  cannot  return  it  afterwards  to  the  vendor.  So 
may  a  sale  of  the  article  with  full  knowledge  of  the  fact  of  pur- 
chase.2 So  may  the  reception  and  substantial  enjoyment  of  the 
benefits  of  the  transaction  after  reaching  majority,  such  as  col- 
lecting dividends  or  interest,3  or  receiving  the  principal,  or 
other  act  totally  inconsistent  with  an  honest  intention  to  dis- 
affirm. A  verbal  promise  is  sufficient  to  bind;4  while  a  con- 
tract to  work  is  ratified  by  continuance  in  the  employer's  service 
for  a  month  after  attaining  full  age.5  Plea  of  the  execution  of 
a  note,  in  defence  of  a  suit  in  assumpsit,  is  held  to  be  confirma- 
tion of  the  note  itself.6  Slight  words,  importing  recognition 
and  confirmation  of  the  promise,  have  been  treated  as  sufficient ; 
or,  at  least,  as  sufficient  for  a  jury  to  consider.7  And,  according 
to  a  recent  decision  of  the  Supreme  Court  of  the  United  States, 
it  is  a  question  for  the  jury  and  not  for  the  court  to  decide, 
whether  the  evidence  submitted  in  any  case  shows  an  affirmance 
or  not,  if  there  be  any  evidence  tending  to  show  it.8 

On  the  other  hand  are  numerous  decisions  which  seem  to 
bear  against  the  creditor.  Says  a  Massachusetts  judge  in  an 
early  case :  "  By  the  authorities  a  mere  acknowledgment  of  the 
debt,  such  as  would  take  a  case  out  of  the  statute  of  limitations, 
is  not  a  ratification  of  a  contract  made  during  minority."  9  Yet 
the  much-quoted  distinction  there  taken  between  "  acknowledg- 
ment "  that  a  debt  is  due,  and  verbal  "  ratification  and  con- 
firmation "  is  either  exceedingly  subtile,  or  at  the  present  day 
frequently  misapplied.  The  distinction  further  developed  leads, 
as  we  find,  to  the  conclusion  that  where  one  says  he  owes  the 
debt  and  has  not  the  means  of  payment,  but  will  pay  as  soon  as 
able,  or  words  to  this  effect,  this  is  only  an  acknowledgment, 

1  Benham  v.  Bishop,  9  Conn.   330.  6  Forsyth  v.  Hastings,  27  Vt.  646. 
See  §  446,  post,  as  to  restoring  the  con-         6  Best  v.  Givens,  3  B.  Monr.  72. 
sideration.  7  Hoit  v.   Underhill,   0  N.   II.  436; 

2  Shropshire  v.  Burns,  46  Ala.  108.       Bay  v.  Gunn,  1   Denio,  108 ;  Whitney 
8  Huth    v.    Carondolet    P..,   56    Mo.     v.  Dutch,  14  Mass.  457. 

202  ;  Price  v.  Winter,  15  Fla.  66;  Cor-  8  Irvine  v.  Irvine,  9  Wall.  617,  628. 

win  v.  Shonp,  76  111.  246.  9  Whitney  v.  Dutch,  14  Mass.  460, 

4  West  v.  Penny,  16  Ala.  186 ;    Mar-  per  Parker,  C  J. 
tin  v.  Mavo,  10  Mass.  137. 

707 


§  436  THE   DOMESTIC    RELATIONS.  [PART  V 

and  not  binding.1  Such  decisions  do  not  always  support  the 
explanation  sometimes  given,  that  the  American  cases  proceed 
upon  the  ground  of  intention  to  ratify ;  though  there  are  doubt- 
less cases  which  support  so  reasonable  a  view.2  In  a  well- 
considered  Connecticut  case  the  distinction  is  thus  drawn :  that 
the  infant's  contract  to  pay  money  not  for  necessaries,  cannot  as 
a  rule  be  ratified  by  any  mere  acknowledgment  of  indebtedness 
after  he  becomes  of  age,  since  there  should  be  an  express  prom- 
ise to  pay ;  but  that  an  exception  arises  where  the  infant 
received  the  consideration  for  which  his  promise  was  given,  and 
after  he  becom.es  of  age  still  has  it  in  his  possession  or  under 
his  control ;  and  in  such  a  case  it  will  be  inferred  from  his  mere 
acknowledgment  of  indebtedness  that  he  meant  to  make  himself 
liable.3 

§  43G.  The  Same  Subject ;  Conflicting  Dicta.  —  What  is  it 
that  suffices  to  take  a  case  out  of  the  statute  of  limitations  ? 
"Either  an  express  promise  to  pay,  or  an  unqualified  acknowl- 
edgment of  present  indebtedness;  in  which  latter  case  the  law 
will  imply  a  promise  to  pay."  4  What  is  ratification  of  a  con- 
tract ?  So  far  as  a  definition  may  be  hazarded,  it  is  a  voluntary 
admission  that  one  is  liable  and  bound  by  the  terms  of  an  exist- 
ing though  inchoate  or  imperfect  contract.  A  debt  is,  of  course, 
created  by  contract  express  or  implied.  But  some  say  that 
there  must  always  be  a  new  contract  made  by  the  minor  on 
reaching  majority.     To  hold  that  a  new  contract  for  payment  is 

1  See  Proctor  v.  Sears,  4  Allen,  95 ;  be  presumed  that  the  note  was  given 
Thompson  >■.  Lay,  4  Pick.  48;  Ford  v.  for  necessaries,  nor  that  the  consider- 
Phillips,  1  Pick.  203;  Hall  v. Gerrish,  8  ation  remains  under  the  maker's  con- 
Is1.  II.  374  ;  Goodsell  o.  Myers,  3  Wend,  trol ;  this  must  he  proved  by  the  party 
47!»  ;  Wilcox  v.  Roath,  12  Conn.  550;  whoseekstoenforce.it,  lb. 
Chandler  v.  Glover,  32  Penn.  St.  3  Catlin  v.  Haddox,  49  Conn.  492. 
509,  This  statement  assumes  that  the  con- 

-  See  Thing  v.  Dibbey,  16  Me.  55;  sideration  which  the  infant  retains  is 

Dana  v.  Stearns,  3  Cush.372;  Smith  v.  a  bona  fide  and  ample  one,  making  it 

Kelly,  13  Met.309.     And  see  note  to  16  inequitable  to  delay  his  decision  to  af- 

]■;.   i,.  &   Eq.  558.    The  mere  indorse-  firm  or  disaffirm  while   he   holds  the 

ment  on  a  minor's  note  of  a  receipt  of  benefits. 

money  of  date  after  the  maker  had  at-  4  See  Gailey  v.  Crane,  21  Pick.  523; 

tained  majority,  is  not  a  sufficient  rati-  Wakeman    v.   Sherman,    5    Seld.   91; 

fication     Catlin  v.   Haddox,  49  Conn.  Marshall,    ('.    J.,    in     Clemenstine    v. 

492      In  a  Buil   on  such  note,  brought  Williamson,  8  Crauch,  72;    Story,  J., 

after  the  maker's  majority,  it  will  not  in  Bell  v.  Morrison,  i  Pet.351. 
708 


CHAP.  V.]       RATIFICATION,    ETC.,   OF   CONTRACTS.  §  437 

essential,  differs  certainly  from  ruling  that  ratification  and  con- 
firmation of  an  existing  contract  binds  one  who  was  lately  an 
infant.  But  once  again  such  contracts  of  an  infant  are  called 
voidable.  Does  not  the  term  "  voidable  "  imply  something  still 
different,  something  which  binds  until  expressly  repudiated? 
And  if  so,  how  doubly  inconsistent  to  exact  a  specific  promise 
to  pay,  over  and  above  an  admission  of  present  indebtedness. 
In  truth,  the  law  is  here  overburdened  with  its  own  definitions; 
judicial  terms,  inconsistent  and  varied,  bewilder  the  judicial 
mind;  and  thankless,  indeed,  must  be  the  task  of  refining  upon 
distinctions  which  rest  upon  no  rational  basis  of  difference.1 

§  -437.  The  Same  Subject ;  Summary  of  Doctrine.  —  This 
writer  makes  no  attempt  to  reconcile  the  numerous  dicta  of  the 
courts  on  this  important  subject.  They  are  irreconcilable.  If 
American  decisions  themselves  may  be  regarded  as  pointing  out 
a  general  rule,  it  seems  to  be  this :  that  the  mere  acknowledg- 
ment that  a  certain  transaction  constitutes  a  debt  is  insufficient 
to  bind  him  lately  an  infant;  but  that  an  acknowledgment  to 
the  extent  that  he  justly  owes  that  debt,  with  equivocal  expres- 
sions as  to  some  future  payment,  may  or  may  not  be  considered 
sufficient,  though  the  better  opinion  is  in  favor  of  their  suffi- 
ciency ;  that  acts  or  omissions  on  his  part,  which  are  prejudicial 
to  the  adult  party's  interests,  or  evince  his  own  intention  to  retain 
the  consideration  and  advantages  of  a  contract  made  during 
infancy,  may  be,  especially  when  reasonable  time  has  elapsed, 
construed  into  a  ratification,  without  an  express  promise,  the 
presumption  of  honorable  motives  being  fair  and  reasonable 
under  such  circumstances  ;  and  finally,  that  a  distinct,  unequivo- 
cal promise,  verbal  or  written,  made  after  attaining  majority,  is 
always  sufficient,  this  apparently  superseding  the  former  promise 
altogether.2     In  cases  of  doubt,  moreover,  it  would  seem  to  be 

1  Lord    Kenyon    seems  responsible  infant,  after  he  had  attained  that  age 

for  the  doctrine   that   the  case   of   in-  when  the    law  presumes   that   he   has 

fancy    differs     in    essence    from    that  discretion."     Thrupp  v.  Fielder,  2  Esp. 

under  the  statute  of   limitations.     He  628. 

says:    "In   the   case   of    an    infant,   I  -  Sec   American    cases  collected    in 

shall  hold  an  acknowledgement  not  to  Am.  editor's  note  to  16  E.  L.  &  Eq.  558  ;' 

be  sufficient,  and  require  proof  of  an  Bobo   v.    Ilansell,   2   Bail.    114;    Ack- 

express  promise   to   pay,  made   by  the  ermau  v.  Bunyon,  1   Hilt.  (N.  Y.)  58,' 

709 


§437 


THE   DOMESTIC    RELATIONS. 


[part  v. 


better  to  treat  the  evidence  presented  as  constituting  facts  for 
the  consideration  of  the  jury,  rather  than  a  question  of  law  for 
the  court  to  pass  upon. 

Some  cases  go  even  farther,  and  require  an  express  repudia- 
tion on  the  infant's  part.  But  this  is  appropriate  only  to  cer- 
tain transactions,  and  we  are  not  justified  in  deducing  therefrom 
a  general  principle  that  express  repudiation  is  necessary  in  all 
voidable  contracts  of  an  infant ;  for  the  decisions  certainly  do 
not  go  to  this  length,  whatever  the  dicta}  Express  acts  of  dis- 
affirmance or  repudiation  leave  no  doubt  of  intention  on  this 
point;  and  they,  of  course,  suffice  to  avoid  the  contract  made 
during  infancy.  As  in  a  sale  of  his  land,  where  one  gives  notice 
that  he  considers  the  bargain  void,  and  offers  to  return  the  con- 
sideration.2 And  so  generally  where  the  transaction  is  such 
that  the  late  infant  must  take  the  initiative  or  else  forfeit  his 
right,  being  out  of  possession.  There  are  many  other  ways  in 
which  one  may  clearly  disavow  his  intention  of  carrying  into 
effect  the  contract  made  during  infancy ;  and  if  the  transaction 
appears  to  have  been  made  shortly  before  reaching  majority,  and 
not  to  be  disadvantageous  to  the  infant,  his  disavowal  ought  not 
to  be  inferred  from  his  silence.3 


Vaughan  v.  Parr,  20  Ark.  600;  Rich- 
ardson v.  Boright,  9  Vt.  368  ;  Hodges  v. 
Hunt,  22  Barb.  150;  State  v.  Plaisted, 
43  X.  H.  413  ;  Wright  v.  Steele,  2  N.  H. 
51;  Conklin  v.  Ogborn,  7  Ind.  553; 
Merriam  v.  Wilkins,6  N.  H.  413;  Jones 
v.  Butler,  30  Barb.  641  ;  Ourtin  v.  Pat- 
ton,  11  S.  &  R.  305;  Norris  v.  Vance, 
3  Rich.  161;  Oswald  v.  Broderick,  1 
Clarke  (Iowa),  380. 

1  See  Holmes  v.  Blogg,  8  Taunt.  39; 
Richardson  v.  Boright,  9  Vt.368;  Kline 
r.  Beebe,  6  Conn.  404 ;  Hoitv.  Under- 
bill, 9  \.  II.  139. 

-  S.-<-  Willis  v.  Twombly,  13  Mass. 
204  :  Aldrich  v.  Grimes,  in  N.  II.  194; 
Williams  V.  N'orris,  2  Litt.  157;  Hill 
/  Anderson,  5  S.  &  M.216;  M'Gillv. 
Woodward,  3  Brer.  401;  Seranton  v. 
Bt(  ••lit,  52  Ind.  69,  92. 

b  Davis  v.  Dudley,  70  Me.  266. 
Non-assertion  of  rights  in  a  court  of 

710 


justice,  where  the  conrts  are  closed  dar- 
ing war,  cannot  be  construed  into  con- 
firmation. Thompson  v.  Strickland,  52 
Miss.  574.  Nor  can  statements  of  record 
evidently  referring  to  personal  property 
be  taken  as  confirmation  of  a  convey- 
ance of  real  estate.  Illinois  Land  Co. 
v.  Bonner,  75  111.  315.  Equivocal  acts 
very  shortly  after  attaining  majority 
should  not  be  construed  readily  into  a 
binding  ratification  or  election  not  to 
avoid.  Tobey  v.  Wood,  123  Mass.  88. 
Nor  a  transaction  only  remotely  con- 
nected  with  the  transaction  to  which 
he  was  a  party  in  infancy.  Todd  v. 
Clapp,  118  Mass.  495.  Notice  of  dis- 
affirmance, given  in  writing,  will  suf- 
fice. Seranton  r.  Stewart,  52  Ind.  69,  92. 
Especially  if  this  be  consistcntlv  fol- 
lowed up  by  arts  of  ownership  or  such 
as  indicate  a  claim  of  title  adverse  to 
the  transaction  of  infancy.     Tunisou  v. 


CHAP.  V.]       RATIFICATION,    ETC.,   OF   CONTRACTS.  §  438 

A  conditional  promise,  when  of  age,  to  perform  a  contract 

made  during  minority  will  not  sustain  an  action  thereon  without 
proof  that  the  condition  has  been  fulfilled.1  And  any  conditional 
ratification  is  subject  accordingly.2 

Keasonable  time  for  an  infant,  on  coming  of  age,  to  elect,  to 
confirm  or  avoid  the  acts  and  contracts  of  his  minority,  must 
depend  in  each  case  upon  the  particular  circumstances;  and  in 
all  cases  the  mental  operation  of  election  at  majority,  whether 
outwardly  manifested  more  or  less  plainly,  and  whether  actually 
proved  or  to  be  conclusively  assumed  from  long  lapse  of  time 
and  silence,  is  the  fact  to  be  legally  established  or  inferred.3 
And  such  election  once  made  is  irrevocable.4  An  obligation  may 
be  silently  outstanding  or  maturing  when  the  infant  reaches  full 
age  or  it  may  by  that  time  reach  the  stage  of  performance  or  en- 
forcement; and  lapse  of  time  before  disaffirmance  ought  to  bind  the 
late  infant  more  readily  in  the  latter  case  than  the  former  because 
active  regard  on  his  part  is  called  for  in  such  connection.5  In 
other  words,  reasonable  time  should  be  determined  by  the  facts 
and  circumstances  in  each  case. 

§  438.  Rule  as  to  Conveyance  of  Infant's  Lands,  Lease,  Mort- 
gage, &c  —  Let  us  apply  the  rule  of  ratification  or  avoidance  to 
the  infant's  lands,  where,  as  we  have  stated,  affirmance  or  dis- 
affirmance is  postponed  to  his  majority.6     If  an  infant  makes  a 


Chambly,  88111.378.     Suing  to  set  aside  action  in  question  is  of  a  meritorious 

the  transaction  is  a  disaffirmance.     Gil-  character  by  which  in  good  conscience 

lespie  v.  Bailey,  12  W.  Va.  70.     And  lie  ought  to  be  bound, 

see  §§  4-tl,  442,  post;  Baker  v.  Kennett,  4  If  evidence  of  express  disaffirmance 

54  Mo.  82.  is  shown,  acta  tending  to  prove  a  prior 

1  Proctor  v.  Sears,  4  Allen,  95  ;  Ever-  full  affirmance  maybe  shown  likewise, 
son  v.  Carpenter,  17  Wend. 419  ;  Chand-  Scranton  v.  Stewart,  52  I  mi.  69,  92. 

ler  v.  Glover,  32  Penn.  St.  509;  Hath  v.  5  Where  an    infant  went  surety  for 

Carondolet  R.,  56  Mo.  202.  another,  a  year  and  a  half  has  been  con- 

2  lb. ;  State  v.  Binder  (1895),  N.  J.  sidered    not    unreasonably    long    after 

3  Stringer  v.  Life  Ins.  Co.,  82  Ind.  bis  majority   to  disaffirm.     Johnson  v. 
100.      Parke,  B.,  says  in   Williams  v.  Storie.  32  Neb.  610. 

Moor,  1 1  M.  &  W.  256,  265,  that  the  8  While  a  minor's  affirmance  or  dis- 
principle  on  which  the  law  allows  a  affirmance  by  election  is  postponed  until 
party  who  has  reached  twenty-one  to  his  majority,  he  may,  daring  his  mi- 
give  validity  to  contracts  entered  into  nority,  enter  upon  premises  which  he 
during  his  infancy,  is,  that  he  is  sup-  has  conveyed  to  another,  and  receive 
posed  to  have  acquired  the  power  of  rents  and  profits  until  arriving  at  full 
deciding  for  himself  whether  the  trans-  age ;    or   he    may  by  his  guardian  or 

711 


§  438  THE   DOMESTIC   RELATIONS.  [PART    V. 

lease  of  his  land  (which  is  voidable  if  for  his  benefit,  but  not 
otherwise),  and  accepts  rent  after  attaining  full  age,  and  by  other 
slight  acts  affirms  the  transaction,  this  is  a  ratification  of  the 
lease  and  he  cannot  afterwards  disaffirm.1  And  where  a  minor 
mortgaged  his  land,  and  on  coming  of  age  conveys  it  to  another 
person  in  fee,  subject  to  the  mortgage,  which  he  recognizes  in 
the  second  deed,  it  is  held  to  be  a  ratification  of  the  mortgage  ;2 
and  making  a  new  mortgage  after  majority  has  naturally  the 
effect  of  creating  a  junior  incumbrance.3  So  slight  acts  of  assent 
on  the  infant's  part  are  held  sufficient  to  confirm  leases  made  by 
a  guardian  beyond  the  term  of  his  authority.4  But  an  act  of  the 
late  infant,  clearly  showing  his  intention  not  to  be  bound  by  his 
mortgage,  is  a  sufficient  avoidance  of  it.5  A  prompt  declaration 
of  his  intention  to  disaffirm,  and  a  conveyance  to  another,  will 
answer.6  The  execution  of  a  warranty  deed  to  another  without 
reservation  of  the  mortgage  incumbrance  imports  a  disaffirm- 
ance of  the  mortgage ; 7  but  the  execution  of  a  quitclaim  deed 
does  not.8 

As  to  the  infant's  mortgage,  it  may  be  further  remarked  that  a 
minor  cannot  avoid  a  mortgage  given  to  secure  either  real  or 
personal  property  purchased  by  him  without  avoiding  the  sale 
also.9  The  purchase  and  mortgage  back  constitute  one  trans- 
action. And  an  assignment  of  the  mortgage  will  carry  to  the 
assignee  all  the  mortgagee's  rights,  whether  the  infant  affirms  or 
disaffirms.10  The  subsequent  ratification  of  a  mortgage,  as  of 
other  deeds,  relates  back  to  the  first  delivery,  so  as  to  affect  all 

next  friend  procure  the  appointment  of  4  See  Smith  v.  Low,  1  Atk.  489. 

a  receiver  for  collecting  rents  and  pro-  5  State  i>.  Plaisted,  43  N.  H.  413. 

fits.     15  Col.  492.  6  White  v.   Flora,   2  Overton,  426; 

But    an    infant   cannot,  during   mi-  Hoyle  v.  Stowe,  2  Dev.  &  Bat.  320. 
nority,  disaffirm  his  conveyance  nor  re-         "  Dixon  v.  Merritt,  21    Minn.  11)6; 

over     possession.      Shipley    v.    Bunu  Allen  v.  Poole,  54  Miss.  323. 
(1894),  Mo.;  §400.  Singer  Man.  Co.  v.  Lamb.  81  Mo. 

1   Ashfield    v.   Ashfield,    W.    Jones,  22i.     The  warranty  deed  of  a  minor 

157;  Wimberley  v.  Jones,  1   Ga.  Dec.  does   not    disaffirm    his   mortgage   be- 

91.  cause  he  cannot  disaffirm  while  an  in- 

-  Boston    Hank    v.  Chamberlin,   15  fant.     lb. 
.M.  -   220;  Story  v.  Johnson,  2  You.  &         »  Heath  v.  West,  8  Fost.  101;  Dana 

Coll.   Exch.  607;    Phillips  v.  Green,  5  v.  Coombs,    6    Greenl.    89.    And    see 

Monr.  355;    Lynde  v.  Budd,  2   Paige,  §  441. 
rii;  !..-.-.  v  Bond,  94  Ind.  67.  I0  Ottman  w.Moak,3Sandf.Ch.431. 

3   McGan  V.  Marshall,  7  Humph.  121. 

712 


CHAP.  V.]      RATIFICATION,    ETC.,   OF   CONTRACTS.  §  439 

intermediate  persons,  except  purchasers  for  a  valuable  consider- 
ation.1 And  where  a  loan  of  money  was  made  to  an  infant  for 
which  he  executed  a  bond  and  mortgage,  ami  in  a  will  made 
after  he  became  of  age  directed  the  payment  of  "  all  his  just 
debts"  and  died,  it  was  held  that  the  will  sufliciently  confirmed 
the  mortgage.2  Even  notes  given  for  the  purchase-money  of 
land,  not  secured  by  mortgage,  have  been  equitably  enforced; 
and  the  court  has  refused  to  permit  the  notes  to  be  disaffirmed 
and  the  land  reclaimed.3  And  yet  the  retention,  alter  reaching 
majority,  of  the  proceeds  of  land  purchased  and  afterwards  sold 
by  the  person  while  an  infant,  is  not  of  itself  sufficient  to  render 
him  liable  upon  his  covenant  to  pay  an  outstanding  mortgage 
upon  the  land  which  he  had  assumed  as  part  of  the  consideration 
of  his  purchase.4  But  allowing  the  mortgage  to  be  foreclosed 
after  majority,  and  a  bill  of  foreclosure  to  be  taken  as  confessed, 
may  defeat  the  infant's  equity.5  A  mortgage  given  by  the  infant 
is  affirmed  if  he  pays  interest  on  the  mortgage  note  after  attain- 
ing majority.6 

§  439.  Same  Subject ;  Infant's  Conveyance,  Lapse  of  Time,  &c. 
—  It  would  seem  that  the  infant  is  not  precluded  from  dis- 
affirming his  conveyance  of  real  estate  by  the  mere  lapse  of 
time,  provided  there  has  been  no  word  or  act  on  his  part  in- 
dicating affirmance.  Laches  is  not  imputable  to  an  infant 
during  the  continuance  of  minority.7  Where  land  has  been 
sold  by  an  infant,  it  was  said  in  a  Connecticut  case,  years  ago, 
the  period  of  acquiescence  being  thirty-five  years,  that  the  infant 
ought  to  declare  his  disaffirmance  within  a  reasonable  time ; 
and  similar  dicta  may  be  found  in  other  courts ;  but  there  seems 
to  be  no  doubt  upon  the  decided  cases,  that  mere  acquiescence 
is  no  confirmation  of  a  sale  of  lands  unless  it  has  been  prolonged 
for  the   statutory  period  of  limitation;  and  that  an  avoidance 

1  Palmer  v.  Miller,  25  Pari).  399.  '  Smith   v.    Sackett,    5    Gilm.  534; 

2  Merchants'  Fire  Ins.  Co.  v.  Grant,  Hill  v.  Nelms,  S6  Ala.  442.     lint  time 
2  Edw.  Ch.  544.  which  lias  commenced  running  against 

3  Weed  v.  Beelie,  21  Vt.  495.  the  ancestor  continues  to    run   against 

4  Walsh  v.  Powers,  43  N.  Y.  23.  the  infant  heir.     55  Ark.  85  ;  1 14  X.  V. 
6  Terry  v.  McClintock,  41  Mich.  492.     595. 

6  American  Mortgage  Co.  v.  Wright 
|1894),  Ala. 

713 


§  439  THE   DOMESTIC    RELATIONS.  [PART   V. 

may  be  made  any  time  before  the  statute  has  barred  an  entry.1 
But  disaffirmance  is  here  required ;  and  any  solemn  revocation, 
or  a  conveyance  to  some  one  else  of  that  land  repudiates  the  infant's 
conveyance  ;  while  any  new  conveyance  by  way  of  affirmance 
makes  the  infant's  deed  wholly  valid.2 

Whatever  might  be  the  effect  of  an  infant's  own  fraud,  as 
against  himself,  it  would  appear  that  a  subsequent  purchaser 
or  mortgagee  in  good  faith  and  for  a  valuable  consideration,  will 
hold  his  title  as  against  a  deed  made  by  the  owner  during  his 
minority,  of  which  lie  has  received  neither  actual  nor  construc- 
tive notice ;  and  this,  too,  notwithstanding  ratification  or  fraud 
of  the  minor  might  have  rendered  that  deed  valid.3 

Yet  lapse  of  time,  together  with  slight  circumstances,  have  in 
many  instances  sufficed  to  sustain  an  infant's  deed.  A  Missouri 
case,  indeed,  holds  that  mere  declarations  or  a  promise  upon 
contingency  will  not  ratify  and  confirm.4  But  the  authorities 
generally  manifest  extreme  repugnance  at  setting  aside  a  solemn 
conveyance  of  land  and  reopening  beneficial  transactions,  merely 
to  suit  the  caprice  or  dishonorable  intent  of  infants.5  This  may 
explain  another  dictum  to  the  effect  that  an  infant's  deed  will 
be  confirmed  by  any  deliberate  act  after  he  becomes  of  age,  by 
which  he  takes  benefit  under  it  or  recognizes  its  validity;6 
which  is  not  without  precedents  for  support.  Thus  in  some 
instances  where  the  infant,  after  coming  of  age,  saw  the  pur- 
chaser  make    valuable    improvements    and    incur   considerable 

1  1  Am.  Lead.  Cas.  4th  ed.  256;  Met.  Moore   v.  Baker,   92   Ky.  518;  Cox  v. 

Contr.  60,  61,  and  cases  cited;  Tucker  McGowan   (1895),   N.   C.     Where  the 

r.  Moreland,  10  Pet.  58;   Boody  v.  Mc-  infant,   with   knowledge   of    the   facts, 

Kenney,23  Me.  517;   Drake  v.  Ramsay,  accepts   upon    majority   the  residue  of 

5    Ohio,   251  ;    Jackson   v.    Burchin,    14  the  purchase  price  of  the  land,  he  rati- 

Johns.  121;   Urban  v.  Grimes,  2  Grant,  fies   the   transaction.      Smith   v.   Gray 

96;    Vaughan    v.    Parr,  20   Ark.  600;  (1895),  N.  C. 

Voorhiea   v.    Vborhies,   24   Barb.   150;  »  Black  v.  Hills,  36  HI.  376;  Inman 

Ware  v.  Brush,  1  McLean,  533 ;  Moore  v.  Inman,  L.  It.  Eq.  260;   Weaver  v. 

>■.    Abernethy,  7    Blackf.  442;  Cole  v.  Carpenter,  42  Iowa,  343. 

Pennoyer,    14    111.    15st;    Gillespie    v.  4  Clamorgan   v.   Lane,  9   Mo.  446. 

Bailey,  12  W.  Va.  70  (the  case  of  an  And   see    Davidson  v.   Young,  38  111. 

infant  tenant  in  common);  Wallace  v.  145. 

Latham,  .'.2   Wis    291  ;    Prout  V.   Wiley,  c  See  cases  cited  in  preceding  para- 

2H  Mick  164;  21    Fed.  It.  82  ;   120  Mo.  graph. 

3s'i.  8  McCormic  v.  Leggctt,  8  Jones,  425 

a  Mette    r.   Feltgen,   148    111    357; 
714 


CHAP.  VI.]       RATIFICATION,    ETC.,   OF   CONTRACTS. 


§439 


expense,  and  said  nothing  for  years,  lie  was  held  bound.1  So 
too,  it  would  seem,  where  one,  knowing  his  title,  permits  another 
to  purchase  without  giving  notice  of  his  claim.2  Or  omits  a  fair 
opportunity  for  asserting  his  privilege.3  While  mere  lapse  of 
time  less  than  the  statute  period  will  not  suffice,  yet  the  lapse 
of  a  less  period  in  connection  with  such  circumstances  may. 
A  tribunal  of  justice  can  properly  decline  to  become  the  instru- 
ment of  a  knave ;  and  the  late  infant's  dishonorable  intention  to 
take  advantage  bears  against  him.  So,  in  Illinois,  and  some 
other  States,  the  statute  makes  conveyances  of  a  minor  binding, 
unless  disaffirmed  and  repudiated  within  a  certain  reasonable 
period,  say  three  years  after  reaching  majority;4  which  is  just 
legislation.  Where  the  infant  was  nearly  of  age  when  he  con- 
veyed, and  had  made  a  fair  sale,  receiving  the  purchase-money, 
delay  on  his  part  to  disaffirm  is  not  favored.5  In  short,  there  is, 
according  to  the  best  authorities,  a  well-recognized  distinction 
between  the  nature  of  those  acts  which  are  necessary  to  avoid 
an  infant's  deed,  and  those  which  are  sufficient  to  confirm  it. 
The  deed  cannot  be  avoided  except  by  some  solemn  act,  or,  as 
some  assert,  an  act  equally  solemn  with  the  deed  itself;  but  acts 
of  a  character  which  would  be  insufficient  to  avoid  such  a  deed 
may  amount  to  an  affirmance  of  it.6     And  there  ought  to  be  no 


1  Wheaton  v.  East,  5  Yerg.  41  ; 
Wallace  v.  Lewis,  4  Hairing.  75  ;  Jones 
v.  Fhenix  Bank,  4  Seld.  235  ;  Davis  v. 
Dudley,  70  Me.  236.  Aliter  where  im- 
provements are  made  while  the  late 
infant  is  absent  and  silent.  78  Va.  584. 
And  cf.  Brantley  v.  Wolf,  60  Miss.  420. 

If  there  is  doubt  whether  the  deed 
was  made  during  infancy  or  not,  the 
burden  of  proof  is  on  the  disaffirming 
party.     73  Md.  297. 

2  Hall  v.  Simmons,  2  Rich.  Eq  120  ; 
Alsworth  v. Cordtz,31  Miss.  32;  Belton 
v.  Briggs,  4  Desaus.  465 ;  Cresinger  v. 
Welch,  15  Ohio,  156;  Emmons  v.  Mur- 
ray, 16  N.  H.  385.  But  see  Brantley  v. 
Wolf,  60  Miss.  420. 

3  156  Penn.  St.  91. 

4  Blankenship  v.  Stout,  25  111.  132  ; 
Wright    v.    Germain,    21     Iowa,   585 ; 


supra,  §  433.  And  see  Ferguson  v. 
Bell,  17  Mo.  347;  Bostwick  v.  Atkins, 
3  Comst-  53  ;  Pursley  v.  Hays,  17  Iowa, 
311  ;  Sheldon  v.  Newton,  3  Ohio,  n.  s. 
494  ;  Rainsford  v.  Rainsford,  Spears  Ch. 
385.  Forgetfulness  of  the  deed  made  in 
infancy  is  no  sufficient  excuse  for  de- 
lay to  disaffirm.  Tunison  v.  Chamblin, 
88  111.  378.     See  73  Md.  297. 

6  73  Tex.  344. 

0  Irvine  v.  Irvine,  9  Wall.  617.  Here 
taking  a  lease  of  part  of  the  premises 
from  the  person  to  whom  he  had  con- 
veyed when  an  infant  was  held  proper 
evidence  of  affirmance.  And  see  Phil- 
lips t\  Green,  5  Mour.  344;  Scott  v. 
Buchanan,  11  Humph.  468;  Allen  v., 
Poole,  54  Miss.  323  ;  Johnston  v.  Fur- 
nier,  69  Penn.  St.  449  ;  Be  Wood,  71  Mo. 
623 ;  Houser  v.  Reynolds,  1  Hayw.  14a 

715 


§  440  THE   DOMESTIC    RELATIONS.  [PART  V. 

disaffirmance  favored,  which  comes  unreasonably  late  after  the 
legal  disability  is  removed.1 

The  purchaser  of  an  infant's  lands  succeeds  to  all  the  infant's 
rights  in  relation  to  it,  although  those  rights  grow  out  of  the 
latter's  infancy.2  And  a  party  in  possession  under  the  infant's 
deed  cannot  be  regarded  as  a  trespasser  before  the  deed  is 
avoided.3 

§440.  The  Same  Subject;  Entry,  &c.  —  A  conveyance,  in 
due  season  after  majority,  to  a  third  person  has  been  taken  to 
be  sufficient  disaffirmance  of  the  minor's  deed,  especially  when 
coupled  with  express  notice  of  disaffirmance,  and  followed  by 
the  grantee's  entry.4  And  another  means  of  disaffirming  the 
conveyance  of  one's  lands  during  infancy  consists  in  bringing 
an  ejectment  suit.5 

Whether  it  is  necessary  that  an  entry  upon  the  land  to  regain 
seisin  be  made  to  perfect  the  title  of  the  person  intending  to 
disaffirm  his  conveyance  as  infant,  does  not  clearly  appear  from 
the  authorities.  The  old  rule  was  that  in  order  to  avoid  a  feoff- 
ment this  was  necessary.  But  conveyance  by  feoffment  has 
been  superseded  by  other  methods  of  transferring  real  property 
in  England,  and  it  is  not  in  use  here.  In  some  of  the  earlier 
New  York  cases,  where  an  infant  had  sold  wild  lands  to  other 
persons,  and  had,  after  coming  of  age,  conveyed  by  similar  deed 
the  same  lands  to  another,  it  was  held  that  the  first  conveyance 
had  been  legally  avoided,  and  the  last  purchaser  was  entitled  to 
the  property.6  A  case  before  the  Supreme  Court  in  the  United 
States  is  supposed  to  sustain  the  same  view;  only  arguendo, 

1  Where  there  was  an  arrangement  conveyed  by  him  during  his   minority 

during  minority  that  the  grantee  would  to    another,  he    effectually  disaffirms, 

reconvey  upon  the  grantor's  majority,  Bagley  ".  Fletcher,  44  Ark.   153  (one 

such  a  transaction    will  be  favorably  judge  dis.).     But  as  to  a  mortgage  see 

regarded  for  enforcement.     89Cal.575.  18  Neb.  121.     Wherever  the  later  deed 

*  Thompson  v.  Gaillard,  3  Rich.  418.  may  he  reconciled  with  that    made  in 

See  .lark-,, I,   v.  Todd,  6  Johns.  2:>: ;  infancy,  so  that  the    two   may  stand 

Hall  v.  Jones,  21  Md.  439.  together,  disaffirmance  should   not  be 

a  Wallace  v.  Lewis,  4  Ilarring.  75.  predicated  of  the  transaction. 

<  Bee  Proul  v.  Wiley,  28  Mich.  164.  ■'  Craig  v.  Van  Bebber,  100  Mo.  584. 

Riggs  v.  Fisk,  64   Md.  ion;  Haynes  v.  8  Jaekson   <•.   Carpenter,    il    Johns. 

Bennett,    53    Mich,    15;     Dawson    <■•  639;  Jackson  j\Burchin,  14  Johns.  124. 

Relmes,  30  Minn.  107.     If.  alter  com-  See  Met.  Contr.  44, 45,  where  this  sub 

ing  of    age,   an    infant    quitclaims    land     jecl  is  discussed. 

710 


CHAP.  V.]        RATIFICATION,    ETC.,   OF   CONTRACTS. 


§  440 


however,  for  in  point  of  fact  the  person  making  the  second  con- 
veyance remained  in  possession  all  the  time  ;  and,  as  the  court 
observed,  "  could  not  enter  upon  himself."  x  Following  the  in- 
dication of  these  three  important  cases,  several  of  the  State 
courts  have  since  held  that  a  conveyance  by  an  infant  of  the 
same  land  to  another  person,  after  he  comes  of  age,  effectually 
avoids  a  deed  of  bargain  and  sale  made  in  infancy ;  and  this 
without  entry  on  his  part.2  But  the  New  York  courts  have 
latterly  been  disposed  to  retrace  their  steps  ;  reluctance  to  do 
injury  to  others,  doubtless,  contributing  to  increase  the  strict- 
ness of  requirements  on  the  infant's  part.  Their  present  rule 
appears  to  be  that,  unless  the  lands  were  wholly  vacant,  or  the 
infant  remained  in  possession,  he  must  make  an  entry  or  do 
some  other  act  of  equal  notoriety  before  he  can  pass  title  by  a 
second  conveyance.3  There  is  no  authority  in  the  New  England 
States  to  oppose  this  later  doctrine ;  nor  do  we  find  any  in 
the  Middle  States.4  But  doubt  is  removed  by  statutes,  in 
Maine,  Massachusetts,  and  some  other  States,  which  permit 
parties  to  recover  land  by  writ  of  entry  without  making  actual 
entry.  And  it  is  held  in  Maine  that  such  a  writ  dispenses  with 
entry  and  amounts  to  disaffirmance.5 

To  render  a  subsequent  conveyance  an  act  of  dissent  to  the 
prior  conveyance  of  an  infant,  it  must  be  inconsistent  therewith, 


1  Tucker  v.  Moreland,  10  Pet.  58, 
per  Story,  J. 

2  Hoyle  v.  Stowe,  2  Dev.  &  Bat.  320 ; 
Pitcher  v.  Laycock,  7  Ind.398  ;  McGan 
v.  Marshall,  7  Humph.  121  ;  Hughes  v. 
Watson,  10  Ohio,  127  ;  Peterson  v.  Laik, 
24  Mo.  541  ;  Haynes  v.  Bennett,  53 
Mich.  15. 

8  Dominick  v.  Michael, 4  Sandf.  421 : 
Bool  v.  Mix,  17  Wend.  133;  Voorhies 
v.  Voorhies,  24  Barb.  150. 

4  See  Roberts  v.  Wiggin,  1  N.  H. 
75  ;  Worcester  v.  Eaton,  13  Mass.  375. 
See  also  Harrison  v.  Adcock,  8  Ga.  68  ; 
Moore  v.  Abernethy,  7  Blaekf.  442. 

5  Chadbourne  v.  Rackliff,  30  Me. 
354.  And  see  Cole  v.  Pennoyer,  14  111. 
158.  Judge  Metcalf  appears  to  doubt 
the  correctness  of  the  rule  in  Jackson 


v.  Carpenter,  even  as  to  cases  of  wild 
lands.  See  Met.  Contr.  45,  46,  and 
cases  cited.  A  bill  to  enforce  specific 
performance  of  an  infant's  contract  to 
sell  real  estate  should  not  be  brought 
before  a  reasonable  time  lias  elapsed, 
after  the  infant  attains  majority,  for 
him  to  affirm  or  disaffirm.  Walker  v. 
Ellis,  12  111.  470;  Petty  v.  Roberts,  7 
Bush,  410;  Griffis  v.  Younger,  6  Ired. 
Eq.  520  ;  Carrel  v.  Potter,  2:3  Mich.  377. 
As  to  the  ratification  necessary  to  allow 
of  enforcing  a  lien  on  real  estate  for 
work  and  materials  furnished  during 
infancy,  see  McCarty  v.  Carter,  49  111. 
53.  But  acquiescing  in  the  settlement 
of  boundaries  after  coming  of  age  binds 
the  infant.  George  v.  Thomas,  1 6  Tex. 
74. 

717 


§  441  THE   DOMESTIC   EELATIONS.  [PART  V. 

so  that  the  two  cannot  stand  together.1  And  it  is  held  that 
where  land  was  conveyed  by  a  person  under  age  in  exchange 
for  other  lands,  and  he,  after  coming  of  age,  sells  and  conveys 
the  lands  so  received,  the  last  deed  amounts  to  a  confirma- 
tion of  the  first.2  There  may  be  other  acts  of  the  late  infant 
equivalent  to  dissent ;  such  as  giving  notice  of  disaffirmance, 
followed  by  a  suit,  if  need  be,  for  repossession  or  restitution  of 
rights.3 

§  441.  Ratification,  as  to  an  Infant's  Purchase,  &c.  — -The  same 
reasoning  which  applies  to  property  transferred  by  the  infant 
applies  to  his  purchases.  If  an  infant,  for  instance,  takes  a  con- 
veyance of  land  during  minority  and  retains  possession  after 
coming  to  majority,  circumstances  may  make  that  a  binding 
transaction.  So,  if  an  infant  lessee  remains  in  possession  of  the 
house  or  land  demised,  and  pays  rent  after  majority,  lie  cannot 
repudiate  the  lease  afterwards.4  Ratification  of  a  purchase  of 
land  involves  ratification  of  a  mortgage  back  to  secure  the  pur- 
chase-money ;  one  cannot  repudiate  the  former  and  not  the  latter, 
for  this  would  be  inequitable.5  But  an  infant  who  leases  or 
hires  premises  may  leave  them  at  any  time  during  infancy  and 
free  himself  from  all  further  liability  for  rent.6  An  infant  may 
duly  avoid  or  ratify  his  purchase  of  personal  property  also, 
either  during  minority  or  within  a  reasonable  time  after  reach- 
ing majority.7 

When  an  infant  purchases  property,  and  continues  to  enjoy 
the  use  of  the  same,  and  then  sells  it  or  any  part  of  it,  and 
receives  the  money  for  it,  he  must  be  considered  as  having 
elected  to  affirm  the  contract,  and  he  cannot  afterwards  avoid 

1  Leitensdorfcrr.  Hempstead,  18  Mo.  Smith,  Contr.  284;  Bac.  Abr.  tit.  In- 
269;  McGaii  v.  Marshall,  7  Humph.  121.  fant,  K.  612;  Baxter  v.  Bush,  29  Vt. 
And  see  §  438.  465;  Armfield  v.  Tate,  7  lied.  258. 

2  Williams  v.  Mabee,  3  Halst.  Ch.  6  §  438;  Langdon  v.  Clayson,  75 
500.  Mich.    204;    Kennedy    v.    Baker,    159 

8  Richardson  r>.  Pote,  93  Tnd.  423.  Perm.  St.  146;  88  Cal.  294.     Provision 

A  minor  remainder-man  will  not  he  in  an  absolute  conveyance  to  an  infant 

excuse!    from    disaffirming    his    deed  conferring  upon  him  the  power  to  sell, 

within  ;i  reasonable  time  after  major-  implies  only  the  power  to  sell  when  the 

ity,  merely  because  his  right  to  bring  disability  of  infancy  is  removed.    Sewell 

ejectmenl  fur  the  bind  has  not  accrued,  v.  Sewell,  92  Ky.  500. 
Nathans  v.  Arkwright,  66  Ga.  179.  °  Gregory  v.  Lee  (1895),  Conn. 

♦  Holmes    v.    Blogg,    8    Taunt.   35 ;  1  §§  407,409. 

718 


CHAP.  V.]        RATIFICATION,   ETC.,   OF   CONTRACTS.  §  442 

payment  of  the  consideration.1  Some  authorities  would  confine 
the  affirmation  of  a  purchase  of  land  to  an  actual  subsequent 
sale,  but  this  is  quite  unreasonable,  and  contrary  to  the  general 
doctrine  ;  for  there  may  be  many  other  acts  which  constitute 
just  as  full  and  undoubted  evidence  of  a  design  on  the  infant's 
part  to  affirm  such  contract  as  an  actual  sale  of  the  land.  Thus 
continuous  occupation  of  premises,  improvements,  and  offers  to 
sell,  have  sometimes  been  deemed  sufficient.2  And  Chief  Jus- 
tice Shaw  observes  that  if  an  infant,  after  coming  of  age,  retains 
landed  property  purchased  by  him  during  minority  for  his  own 
use,  or  sells  or  otherwise  disposes  of  it,  such  acts  being  only 
conscientiously  done  with  intent  to  ratify  or  affirm,  affirmation 
or  ratification  may  be  inferred.3  The  same  principle  has  been 
declared  in  other  cases,  even  to  the  extent  of  holding  that  mere 
continuance  in  possession  is  an  affirmance  ;  the  more  so,  if  the 
late  infant  has  put  it  out  of  his  power  to  restore  the  title.4  It 
will  be  observed  that  such  latter  conduct  involves  two  elements: 
lapse  of  time  and  the  exercise  of  acts  of  ownership.5  But  the 
infant  on  coming  of  age  has  of  course  the  right  to  disaffirm  as 
well  as  to  affirm  the  purchase  by  appropriate  acts.6 

Where  a  deed  made  to  an  infant  is  beneficial  to  him,  equity 
will  infer  an  acceptance  on  his  part,  whether  he  knew  of  the 
conveyance  or  not ;  but  he  may  reject  the  grant  upon  reaching 
majority  if  he  so  elects.7 

§  442.  Executory  Contracts,  &c,  Voidable  during  Infancy ; 
how  affirmed  or  disaffirmed.  —  As  to   deeds  passing  a  voidable 

1  Boody  v.  McKenney,  10  Shep.  517  ;  very  dishonorably,  endeavored  to  avoid 
Hubbard  v.  Cummings,  1  Me.  11  ;  Boy-  payment  upon  majority,  while  holding 
den  v.  Boy  den,  9  Met.  519;  Bobbins  v.  to  the  benefits  of  his  purchase.  It  was 
Eaton,  10  N.  H.  561.  held  that  by  his  acts  he  had   ratified 

2  See  Robbins  v.  Eaton,  10  N.  H.  the  contract  of  purchase.  Henry  v. 
561.  Root,  33  N.  Y.  526. 

3  See  Boyden  v.  Boyden,  9  Met.  519.  6  Williams   v.    Williams,   85   N.  C. 

4  Dana  v.  Coombs,  6  Greenl.  89;  313.  In  51  Minn.  185,  an  arrangement 
Cheshire  v.  Barrett,  4  M'Cord,  241  ;  on  majority  to  keep  the  purchase  was 
Lvnde  v.  Budd,  2  Paige,  191  ;  Middle-  held  an  affirmance  though  the  arrange- 
ton  v.  Hoge,  5  Bush,  478.  ment  itself  failed. 

6  This  rule  was  applied  in  a  recent         7  Owings   v.   Tucker,   90   Ky.    297 ; 

well-considered   New  York  case,  upon  Sneathen   v.   Sneatheu,    104    Mo.   201. 

a  full  examination  of  the  authorities.  Land  conveyed  to  an  infant  upon  his 

An  infant  had  given  his  note  for  cer-  trust  to  reconvey  cannot  be  retained  ly 

tain  real  estate;  and,  very  foolishly,  or  him.     87  Cal.  552  ;  §  416. 

719 


§  443  THE   DOMESTIC    RELATIONS.  [PART    V. 

title  to  land  out  of  the  infant  we  have  seen  that  he  cannot  elect 
to  disaffirm  or  ratify  until  he  attains  majority.  But  with  regard 
to  an  infant's  executory  contracts,  or  transactions  importing  on 
his  part  the  fulfilment  of  duties,  during  the  period  of  infancy, 
which  might  be  prejudicial  or  irksome,  he  is  allowed  to  disaffirm 
and  avoid  during  infancy,  wherever  the  contract  was  not  of  that 
beneficial  or  positive  kind  which  the  law  pronounces  binding. 
This  is  strictly  in  accordance  with  the  general  doctrine  that  one 
shall  not  be  prejudiced  by  his  own  acts  committed  while  an 
infant.  Thus,  if  the  infant  promises  during  infancy  to  marry, 
he  need  not  fulfil  that  promise  ;  if  he  make  a  stock  contract,  he 
can  repudiate  it  at  any  time  and  thereby  avoid  the  onerous  re- 
sponsibility of  continuing  to  pay  assessments  ; 1  if  he  has  become 
a  partner,  he  may  rid  himself,  before  majority,  of  the  injudicious 
compact ; 2  if  he  has  taken  a  lease,  he  may  put  an  end  to  it ; 3  if  he 
executes  a  promissory  note,  he  need  not  pay  when  it  falls  due.4 
A.  disaffirmance  during  infancy,  where  thus  permitted,  may  re- 
quire something  different  from  disaffirmance  at  majority,  some- 
thing more  explicit  perhaps,  and  nearer  to  an  express  repudiation  ; 
though  each  case,  as  in  the  case  of  election  at  majority,  should 
be  governed  by  its  own  circumstances.  The  executory  contract 
of  an  infant  to  convey  or  transfer  his  real  or  personal  property 
cannot  be  specifically  enforced  against  him,  nor  made  the  basis 
of  an  action  of  damages  ;6  nor,  on  the  other  hand,  can  his  execu- 
tory contract  to  buy  real  or  personal  property,  or  to  mortgage  or 
give  security,  be  compelled;6  but  in  either  case  the  right  of 
affirmance  or  disaffirmance  is  left  open.  To  bind  him  he  must 
confirm  such  a  contract  after  attaining  majority. 

§  443.  Rule  applied  to  Infant's  Contract  of  Service.  —  Thus, 
too,  although  it  may  be  said  that  one's  fully  executed  contract 
for  service  cannot  be  re-opened,  if  beneficial  to  him,  to  the  adult 

1  Dublin   &   Wicklow  R.   v.  Rlack,  v.    Roberts,    7    Bush,   410;    Griffis    v. 

3  Ex.  181  ;    Indianapolis  Chair  Co.  v.  Younger,   6   Irod.    Eq.  520.     And   see 

Wilcox,    59    Iii'l.    429;    Robinson    v.  Mustard  v.  Wohlford,  15  Gratt.  329. 
Weeks,  56  Me.  102.  6  See   Riley    v,  Mallory,   33    Conn. 

-  (, le    v.    Harrison,   5  B.   &  Aid.  201;  02  Ala.  4(13.     An  infant  who  bids 

147;  Dunton  v.  Brown,  31  Mich.  82.  for  property  at  an  auction  is  not  obliged 

■  Gregory  v.  Lee  (1895),  Conn.  to  execute  the  purchase.    Slnirtleff  v. 

*  Cummingp  n.  Everett,  82  Me.  260,  Millard,  12  R.  1.272. 

»  Walker  -    Ellis,  12  111.  470;  Petty 
720 


CHAP.  V.]        RATIFICATION,    ETC.,    OF   CONTRACTS. 


§443 


party's  detriment,  the  general  rule,  independently  of  the  appren- 
tice acts,  is  that  an  infant  who  contracts  to  perforin  labor  for  a 
fixed  time  at  a  definite  rate  may  put  an  end  to  it  whenever  he 
chooses  during  minority,  and  claim  compensation  pro  rata  for 
his  services.1  Infants,  acting  upon  bad  advice,  have  sometimes 
the  effrontery,  however,  after  rescinding  a  contract  of  service 
beneficial  to  themselves,  to  demand  wages  from  their  employers, 
without  the  allowance  of  reasonable  offsets ;  but  the  courts  are 
not  so  foolish  as  to  indulge  them  often  in  this  respect ;  hence,  in 
numerous  instances,  it  is  decided  that  where  an  infant  puts  an 
end  to  his  contract  of  service,  his  demand  for  proportional  wages 
is  subject  to  the  reasonable  deduction  of  his  employer  for  part- 
payments,  board,  and  necessaries  furnished  him  during  the  same 
period,  even  to  the  entire  extinction  of  his  own  claim.2  And 
the  injury  sustained  by  his  employer  will  not  be  unfrequently 
taken  into  account.3  But  the  infant  cannot  be  sued  for  breach 
of  his  agreement  of  service.4  Of  course  he  may  set  off  his  own 
labor  against  the  employer's  demand  for  necessaries,  and  recover 
any  balance  accordingly.5  The  mutual  understanding  of  the 
parties  as  to  whether  the  infant's  services  should  be  paid  for,  or 
counterbalanced  completely  by  his  board  and  education,  should 
be  regarded  in  every  case,  upon  examination  of  the  circum- 
stances.6    And  if  the  infant  continues  in  service  after  he  becomes 


1  Person  v.  Chase,  37  Vt.  647  ;  Van 
Pelt  v.  Corwine,  6  Ind.  363;  Ray  v. 
Haines,  52  111.  485  ;  Davies  v.  Turton, 
13  Wis.  185;  Moses  v.  Stevens,  2  Pick. 
332,  Mason  v.  Wright,  13  Met.  306; 
Gaffney  v.  Hayden,  110  Mass.  137; 
Spicer  v.  Earl,  41  Mich.  191  ;  Lufkin  v. 
Mayall,  5  Fost.  82 ;  Francis  v.  Felmet, 
4  Dev.  &  Bat.  498  ;  Judkins  v.  Walker, 
17  Me.  38;  Nashville,  &c.  R.  Co.  v. 
Elliott,  1  Cold.  611.  But  see  WTeeks  v. 
Leighton,  5  N.  H.  343  ;  Harney  v.  ( >wen, 
4  Blackf.  336;  Wilhelm  v.  Hardman, 
13  Md.  140;  M'Coy  v.  Huffman,  8  Cow. 
84;  Medbury  v.  Watrous,  7  Hill,  110. 
As  to  the  more  general  effect  of  eman- 
cipation, see  supra,  Part  III.  c.  5. 

2  Thomas  v.  Dike,  11  Vt.  273  ;  Hoxie 
v.  Lincoln,  25  Vt.  206;  Lowe  v.  Sin- 
klear,  27  Mo.  308;  Stone  v.  Dennison, 

46 


13  Pick.  1 ;  Squier  v.  Hydliff,  9  Mich. 
274;  Wilhelm  v.  Hardman,  13  Md. 
140;  Eoundy  v.  Thatcher,  49  N.  H. 
526. 

3  Thomas  v.  Dike,  11  Vt.  273  ;  Hoxie 
v.  Lincoln,  25  Vt.  206;  Lowe  v.  Sin- 
kic.tr,  27  Mo.  308  ;  Moses  v.  Stevens,  2 
Tick.  336.  Contra,  Meeker  v.  Hurd, 
31  Vt.  639 ;  Derocher  v.  Continental 
Mills,  58  Me.  217. 

4  Frazier  v.  Rowan,  2  Brev.  47. 

5  Francis  v.  Felmet,  4  Dev.  «i  Bat. 
498;  Lockwood  v.  Robbins,  125  Ind. 
398. 

6  Mountain  v.  Fisher,  22  Wis.  93; 
Garner  v.  Board,  27  Ind.  323.  A  case 
occurred  in  Massachusetts  some  years 
ago,  where  an  infant,  in  consideration 
of  an  outfit  to  enable  him  to  go  to  Cali- 
fornia, agreed,  with  his  father's  assent, 

121 


§444 


THE    DOMESTIC    RELATIONS. 


[PART  V. 


of  age,  without  demanding  increase  of  wages  or  other  modifica- 
tion of  the  contract,  this  is  good  evidence  of  his  affirmance  of 
the  contract.1  As  matter  of  law  one  is  not  precluded  from  avoid- 
ing at  majority  a  contract  of  service  if  something  be  due  him, 
although  it  has  been  fully  executed.2 

It  is  a  well-known  principle  that  when  a  contract  is  dissolved 
by  mutual  consent,  pro  rata  wages  may  be  recovered  without 
express  agreement.  This  applies  to  infants  as  well  as  adults. 
But  a  father  is  so  far  bound  by  his  son's  contract  that  his  own 
claim  for  compensation  depends  upon  his  son's  proper  perform- 
ance.3 The  employer,  on  the  other  hand,  cannot  make  a  new 
contract  with  the  minor,  so  as  to  supersede  the  first  one,  with- 
out the  assent  of  the  father,  or  other  person  with  whom  the 
original  contract  was  made.4  But  it  is  held  that  a  contract  of 
hiring  between  an  infant  and  a  third  person  is  not  rendered 
inoperative  on  the  infant's  part  merely  for  want  of  the  parent's 
previous  consent ;  the  infant  not  having  avoided  the  contract, 
and  the  parent  making  no  effort  to  assert  his  paramount 
rights.5 

§  444.  Parents,  Guardians,  &c,  cannot  render  Transaction 
Obligatory  upon  the  Infant,  &c.  —  A  contract  made  by  a  parent, 


to  give  the  party  famishing  the  ontfit 
one  third  of  all  the  avails  of  his  labor 
during  his  absence,  which  he  afterwards 
Bent  accordingly.  The  jury  having 
found  that  the  agreement  was  fairly 
made,  and  for  a  reasonable  considera- 
tion, and  beneficial  to  the  infant,  it  was 
held  that  he  could  not  rescind  the 
agreement  and  recover  the  amount 
sent,  deducting  the  cost  of  the  outfit 
and  any  other  money  expended  for 
him  under  the  agreement.  Breed  v. 
.) iuIi],  1  Gray,  4.">o.  This  offer,  the 
court  observed,  would  not  place  the 
parties  in  statu  quo,  ioi  the  defendants 
took  the  risk  of  the  life,  health,  and 
good  fori  iiik;  of  the  plaintiff.  Under 
all    the   circumstances  of  the  case,  the 

Mim  advanced  was  held  to  be  a  reason- 
able consideration  for  a  third  part  of 
the  proceeds  of  the  plaintiff's  labor. 
1  Spiceru.  Earl,  411  Mich.  91.    Says 

722 


Cooley,  J.,  of  repudiation  in  such  cases  : 
"  Where  only  the  infant's  services  are 
in  question,  the  rule  should  not  he  ex- 
tended beyond  what  is  absolutely  neces- 
sary to  proper  protection  ;  it  should 
not  be  allowed  to  become  a  trap  for 
others,  by  means  of  which  the  infant 
may  perpetrate  frauds."  See  also  For- 
syth v.  Hastings,  27  Vt.  646,  where 
ratification  was  inferred  from  remain- 
ing in  the  employer's  service  a  month 
after  attaining  majority. 

2  150  Mass.  448. 

8  Rogers  v.  Steele,  24  Vt.  513.  See 
Thomas  v.  Williams,  1  Ad.  &  E.  685; 
Koundy  v.  Thatcher,  49  N.  II.  526. 

*  McDonald  v.  Montague,  30  Vt.  357. 
And  see  Gates  v.  Davenport,  29  Barb. 
160.     See  also  Parent  and  Child,  supra, 

6  Nashville,  &c.  R.  R.  Co.  v.  Elliott, 
1  Cold.  64. 


CHAP.  V.J         RATIFICATION,    ETC.,    OF   CONTRACTS.  §  445 

or  guardian,  or  a  stranger,  in  an  infant's  name,  acquires  no 
obligatory  force  against  the  infant  himself,  apart  from  the  lat- 
ter's  knowledge  or  consent ;  and  if  it  be  the  infant's  own  con- 
tract, then  the  usual  right  of  ratification  or  avoidance  remains 
open  to  him.'  One  who  assumes  for  an  infant  a  mortgage  debt, 
or  a  deficiency  upon  foreclosure  uf  the  infant's  land,  or  makes 
any  undertaking  for  the  infant  upon  a  voidable  obligation,  can- 
not render  the  infant  personally  liable.2  A  father,  though  acting 
as  guardian,  cannot  estop  the  child  from  denying  an  invalid  sale 
of  land.3  Nor  can  a  father  sue  on  his  child's  voidable  contract 
as  the  child's  substitute.4 

On  the  other  hand,  a  third  person  not  in  privity  with  the 
infant  has  no  right  to  say  that  the  infant  shall  not  on  majority 
make  or  assume  any  contract  he  pleases.5  Minors  whose  prop- 
erty has  been  sold  without  legal  authority  by  parents,  guardian, 
or  any  one  else,  can  recover  it  again  upon  the  principles  already 
discussed ;  and  thus  may  be  avoided  an  illegal  sale  of  land,  with- 
out first  tendering  the  price  to  the  purchaser,  leaving  him,  how- 
ever, to  recover  such  consideration  as  may  remain.6  So,  too, 
will  purchasers  or  mortgagees  from  the  infant  be  protected 
against  acts  of  the  parents  which  disregard  the  child's  rights.7 

§  445.  Miscellaneous  Points ;  As  to  New  Promise  ;  Whether 
Infant  affirming  must  know  his  Legal  Rights. — Where  a  new 
promise  is  requisite  on  reaching  majority,  it  must  be  made  to 
the  party  with  whom  the  infant  contracted,  or  to  his  agent  or 
attorney  ;  not  to  a  stranger.8  But  a  promise  to  an  agent  au- 
thorized  to  present  the   claim  and  receive   payment  and  give 

1  Armita<;e  v.  Widoe,  36  Mich.  124.  favor.     4  Lea,  405.     Whore  minors  on 

2  Bicknell  c.  Bicknell,  111  Mass.  265;  arriving  at  age  are  induced  by  their 
Wood  v.  Truax,  39  Mich.  628.  trustee  to  execute  a  deed  of  confirma- 

3  38  Fed.  482.  tion   without    their    rights    being    ex- 

4  Osburn  v.  Farr.  42  Mich.  134.  In-  plained  to  them,  equity  will  relieve 
fant  may  redeem  his  land  from  a  tax  them  from  the  consequences  of  their 
sale.     41  Ark.  59.  mistake.     Wilson  v.  Life  Ins.  Co.,  60 

5  Douglas  v.  Watson,  34  E.  L.  &  Eq.  Md.  150.  Delay  in  disaffirming  may 
447.  bar  relief,  if  unreasonable.     94   X.  ('. 

6  59  Tex.  381,  401 ;  Self  v.  Taylor,  732.  And  equitable  considerations  are 
33  La.  Ann.  769  ;  Part  IV.  c.  7.     Equity  not  lost  sight  of.     88  Cal.  294. 

will  charge  purchase-money  applied  for  7  94  Ala.  223. 

the  benefit  of  infants  by  way  of  equit-  8  Rigelow  v.  Grannis,   2   Hill,   120; 

able    subrogation    in    the    purchaser's     Goodsell  v.  Myers,  3  Wend.  479. 

723 


§  446  THE   DOMESTIC   RELATIONS.  [PART  V. 

discharge  binds  him  lately  an  infant.1  And  where  a  writing 
addressed  to  another  than  the  plaintiff  is  relied  on,  not  as  con- 
stituting a  ratification  or  containing  a  promise,  but  as  evidence 
of  a  ratification  previously  made  by  the  defendant,  it  is  held 
admissible  in  the  plaintiff's  favor.2  Nor  is  it  necessary  that  the 
agent  should  have  disclosed  his  authority  before  the  defendant 
made  his  admission.3 

It  is  not  essential  to  a  valid  ratification  that  the  person  lately 
an  infant  should  know  that  he  was  not  legally  liable  on  his  con- 
tract made  during  infancy.4  Ignorance  of  the  law  excuses  no 
one.  But  there  is  a  dictum  of  Lord  Alvanley  to  the  contrary, 
which  has  been  frequently  repeated  in  American  courts,  and  once 
constituted  the  basis  of  a  decision  in  Pennsylvania.5 

Such  acts  as  notice  of  disaffirmance,  and  then  bringing  an 
appropriate  suit,  amount  fairly  to  avoidance  of  an  infant's  con- 
tract, in  various  instances.6 

§  440.  "Whether  Infant  who  disaffirms  must  restore  Considera- 
tion. —  It  is  a  rule  that  money  voluntarily  paid  by  a  minor 
under  a  contract  from  which  he  has  derived  no  benefit  may  be 
recovered  back  upon  his  disaffirmance  of  the  contract.7  If  an 
infant  purchaser  of  goods  claims  the  right  to  rescind  and  restores 
the  property,  he  can  of  course  recover  back  the  purchase-money 
he  paid.8  An  infant  upon  reaching  majority,  who  chooses  to  dis- 
affirm a  sale  of  his  real  estate  not  made  in  accordance  with  law, 
may  do  so  effectually  without  first  refunding,  or  offering  to  re- 

1  Mayer  v.  McLure,  36  Miss.  389.  affirmance  by  the  infant  of  his  release 

2  Stern  v.  Freeman,  4  Met.  (Ky.)  of  a  claim  for  personal  injuries.  St. 
309.  Louis  R.  v.  Higgins,  44  Ark.  293  ;  §  407. 

3  Iloit  v.  Underbill,  10  N.  H.  220.  And  see  30  Fed.  R.  697;  §438,  as  to 
And  see  Tate  v.  Tate,   1    Dev.  &  Bat.  ejectment  to  recover  his  land. 

22.  On   an    issue   whether    an    infant's 

4  Morse  v.  Wheeler,  4  Allen,  570 ;  contract  has  been  ratified,  it  may  be 
Met.  Contr.  59;  Ring  v.  Jamison,  66  shown  that  the  consideration  was  used 
Mo.  124  ;  Anderson  v.  Soward,  40  Ohio  with  Ids  knowledge  for  his  advantage. 
St.325;  Clark  v.  Van  Court,  LOO  End.  95  N.  C.  286. 

113.  '  Shurtleff  v.  Millard,  12  R.  I.  272, 

r'  Harmer  v.   Killing,  S    Esp.   103  ;  applies  this  doctrine  (and  without  re- 

NiiH-lv  ».  Margaritz,  •'>  Barr,  428.    See  Btriction  as  fco  auctioneer's  loss)  to  tho 

Curtinv.  Patton,  li  s.  &  R.  305;  Reed  deposit-money  paid  by  an  infant  at  an 

v.    Boshears,  4   Bneed,  118;    Norris  v.  auction  purchase,  where  he  repudiated 

Vance,  3  Rich.  104.  before  completing  the  purchase. 
The  bringing  of  an  action  is  a  dis-         B  10  Daly,  352 ;  44  Ark.  293. 
724 


CHAP.  V.]         RATIFICATION,    ETC.,    OF    CONTRACTS. 


§  440 


fund,  the  purchase-money.1  Purchase-money  in  such  cases 
might  come  fairly  into  an  account  for  adjusting  rents  and  profits. 
But  the  principle  is  firmly  established  by  the  courts  that  he  can- 
not on  attaining  full  age  hold  to  an  exchange  or  purchase,  made 
by  him  in  infancy,  with  its  advantages,  and  thus  affirm  the  trans- 
action, while  pleading  his  infancy  to  avoid  the  payment  of  the 
purchase-money.2  There  is  some  conflict  in  this  class  of  cases, 
however,  at  the  present  day  ;  the  effort  being  on  the  one  hand  to 
hold  the  infant  to  common  honesty,  and  on  the  other  not  to  de- 
prive him  of  the  legal  right  of  election  which  the  policy  of  the 
law  accords  to  all  who  have  been  under  a  legal  disability,  because 
of  possible  improvidence  on  his  part  while  irresponsible.  Ac- 
cording to  the  better  opinion  now  current,  it  is  only  when  an  in- 
fant on  disaffirming  his  contract  at  majority  still.has  the  consider- 
ation, that  he  can  be  compelled  to  return  it  as  the  condition  of 
disaffirmance  ;  restitution  in  full  not  being  a  prerequisite,  but 
restitution  of  the  advantages  as  they  still  remain  to  him  and 
capable  of  being  restored.3  In  other  words,  if  the  infant  has 
wasted  or  squandered  the  consideration  he  may  repudiate  with- 
out any  tender  of  restitution.4  Where  an  infant  has  the  privi- 
lege of  repudiating  during  infancy,  a  similar  rule  applies  as  to 
restoring  consideration.5     All  that  is  usually  asserted  is  that  the 


1  Pitcher  v.  Laycock,  7  Ind.  398; 
Cresinger  /'.  Welch,  15  Ohio,  156  ;  Miles 
v.  Lingerman,  24  Ind.  385  ;  Bedinger 
v.  Wharton,  27  Gratt.  857 ;  Green  v. 
Green,  69  N.  Y.  553 ;  Moore  v.  Baker, 
92  Ky.  518.  Bat  cf.  Stuart  i>.  Baker, 
17  Tex.  417;  55  Tex.  281. 

"-  Kline  v.  Beall,  6  Conn.  494 ;  Bailey 
v.  Bamberger,  11  B.  Monr.  113;  Strain 
v.  Wright,  7  Ga.  568 ;  Hillyer  v.  Ben- 
nett, 3  Edw.  Ch.  222 ;  Lowry  v.  Drake, 
1  Dana,  46;  Kitchen  v.  Lee,  11  Paige, 
107 ;  Tipton  v.  Tipton,  3  Jones,  552  ; 
Womack  v.  Womack,  8  Tex.  397  ;  Smith 
v.  Evans,  5  Humph.  70 ;  Manning  v. 
Johnson,  26  Ala.  446  ;  Wilie  v.  Brooks, 
45  Miss.  542;  Kerr  v.  Bell,  44  Mo.  120. 

3  Chandler  v.  Simmons,  97  Mass. 
508  ;  Green  v.  Greeu,  69  N.  Y.  553,  and 
cases  cited ;  Dill  v.  Bowen,  54  Ind. 
204;  Shurtleff  v.  Millard,  12  R.  I.  272. 


Cf.  Badger  v.  Phinney,  1 5  Mass.  359 ; 
Bartholemew  v.  Finnemore,  17  Barb. 
428. 

4  Morse  v.  Ely,  154  Mass.  458; 
Craig  v.  Vau  Bebber,  100  Mo.  584. 

6  Corey  v.  Burton,  32  Mich.  30,  the 
case  of  a  chattel  mortgage  ;  where  the 
infant  was  allowed  to  replevy  the  chat- 
tels without  restoring  the  consideration. 
But  an  infant  purchasing  chattels  and 
giving  a  purchase-money  mortgage  for 
the  price  cannot  disaffirm  the  mortgage 
and  at  the  same  time  keep  the  chattels 
as  if  by  clear  title.  Curtiss  v.  McDou- 
gal,  26  Ohio  St.  66  ;  Knaggs  v.  Green, 
48  Wis.  601  ;  Carpenter  v.  Carpenter, 
45  Ind.  142;  White  v.  Branch,  51  Ind. 
210,  —  seem  to  absolve  the  infant  from 
restoring  property  received  in  exchange. 
But,  semb/e,  if  he  still  holds  the  ex- 
changed property  he  ought,  on  correct 

725 


§  446 


THE   DOMESTIC    RELATIONS. 


[PART    V. 


repudiating  infant  should  be  made  to  place  the  adult  in  statu  quo 
as  far  as  possible.1  And  hence  the  ready  disposition  in  so  many 
modern  cases  to  treat  the  transaction  of  minority  as  affirmed, 
wherever  one,  after  attaining  majority,  retains  deliberately  and  en- 
joys the  fruits  of  the  transaction  or  disposes  of  the  consideration.2 
Hence  an  infant  cannot  damage  property  he  has  received,  and 
then  demand  the  full  price  on  offering  to  restore  it.3  Nor  re- 
cover partnership  property  after  rescinding  the  partnership 
agreement,  so  as  to  prejudice  liabilities  of  the  firm  which  are 
outstanding;4  nor  rescind  the  partnership  agreement  and  then 
demand  benefits  inconsistent  with  it.5  If  the  former  vendee  be 
sued  for  use  and  occupation  of  land,  it  is  held  that  he  may 
recoup  for  valuable  improvements  ;  and  equity  favors  a  fair  adjust- 
ment of  rents,  damages,  and  improvements.6  It  is  held  also  in  some 
instances,  that  where  the  infant  disaffirms  his  conveyance  of  land, 
lie  ought  to  be  prepared  to  account  for  the  purchase-money  with 
interest.7  But  again  it  is  said  that  the  infant  on  disaffirming 
may  not  recover  unpaid  purchase-money.8  The  plea  of  false 
warranty  may  sometimes  be  set  up  against  the  infant's  attempt 
by  affirmance  to  enforce  a  hard  bargain.9      To  multiply  these 


principle,  to  restore  or  offer  to  restore 
it,  when  disaffirming  the  transaction. 
In  many  cases  to  maintain  an  action 
based  upon  his  avoidance  of  his  con- 
tract, an  infant  should  first  give  notice 
of  his  election  to  avoid  or  make  a  de- 
mand. Betts  v.  Carroll,  6  App.  518. 
See  Stout  v.  Merrill,  35  Iowa,  47  ;  Henry 
v.  Root,  33  N.  Y.  526.  See,  further, 
Dawson  '•.  Holmes, 30  Minn  107  ;  Brant- 
ley v.  Wolf,  60  Miss.  420;  Brandon  v. 
Brown,  106  [11.519.  A  purchaser  from 
the  infant,  after  majority,  on  a  l>ill  to 
have  the  d>  I'd  cancelled  which  was  made 
in  minority,  need  not  tender  hack  the 
purcha  received  by  the  infant, 

which  the  Latter  has  squandered.  Eu- 
reka Co.  v.  Edwards,  71  Ala.  248. 

1    The    courts    will    aid    the   adult     to 

gel  his  property  restored,  where  they 
can,  aside  from  the  infant's  assent.  69 
Mi-.  328. 

a  Brantlej   <■.   Wolf,  60  Miss.  420; 
§§  430,  487.  " 

726 


3  Carr  v.  Clougb,  6  Fost.  280; 
Bartholemew  v.  Finnemore,  17  Barb. 
428. 

4  Furlong  v.  Bartlett,  21  Pick.  401  ; 
Sadler  v.  Robinson,  2  Stew.  520  ;  Kin- 
nen  v.  Maxwell,  66  N.  C.  45. 

5  Page  v.  Morse,  128  Mass.  99 ; 
§  408  ;  Dunton  v.  Brown,  31  Mich.  82. 
So,  too,  as  to  his  contract  to  perform 
service,  supra,  §  443. 

6  Weaver  v.  Jones,  24  Ala.  420 ; 
Petty  >-.  Roberts,  7  Bush,  410.  If  one 
receives  rents  when  an  infant,  he  can- 
not demand  them  over  again  on  attain- 
ing majority.  Parker  v.  Elder,  11 
Humph.  546.  Where  the  grantee  has 
made  valuable  improvements  they  may 
be  sel  off  against  t  he  rental  value  of  the 
land,  but  the  grantor  is  not  liable  for 
any   excess.       92   Ky.   500. 

''    Sewell   r.  Sewcll,  92  Ky.  500. 

8   100  Mo.  584. 

»  Morrill  v.  Alien,  19  Vt.  505.  And 
see  Heath  v.  West,  8  Fost.  101  ;  Ship 


CHAP.  V.]       RATIFICATION,    ETC.,   OF    CONTRACTS.  §  447 

illustrations  is  unnecessary  ;  the  cardinal  principle  which  runs 
through  them  all  is  that,  with  due  reservation  of  the  infant's 
privilege,  substantial  justice  should  be  done,  if  possible,  between 
the  two  parties  to  a  contract,  and  things  placed  in  static  quo 
when  the  contract  is  rescinded  ;  for  courts  are  very  reluctant  to 
allow  the  infant  to  use  his  privilege  as  a  means  of  defrauding 
others,  at  the  same  time  that  they  resent  all  efforts  of  adults  to 
impose  fraudulently  upon  him.1 

§  446  a.  Avoidance  through  Agents,  &c.  —  It  has  been  said 
that  all  acts  done  by  an  infant  through  an  agent's  intervention 
are  void ;  but  they  are  (in  many  instances  at  least)  rather  to  be 
regarded  as  voidable.2  The  rescission  of  a  minor's  contract  as  to 
personal  property  or  his  person,  then,  by  means  of  an  agent  whom 
he  employs,  should  not  be  pronounced  void,  if  not  plainly  to  the 
infant's  prejudice,  nor  set  up  in  defence  by  the  adult  with  whom 
he  contracted.  And  where  an  infant,  with  his  father's  assent, 
sent  an  attorney  at  law  to  repudiate  his  purchase  for  him,  in- 
stead of  repudiating  personally,  the  adult,  in  a  recent  case, 
was  not  permitted  to  dispute  this  disaffirmance  as  illegally 
made.3 

§  447.  Ratification,  &c. ,  as  to  Infant  Married  Spouse.  —  Since 
a  married  woman  conveys  her  lands  by  force  of  statute  provis- 
ions, perplexing  questions  may  arise  as  to  the  effect  of  a  convey- 
ance executed  in  conformity  with  late  acts,  yet  ineffectual  he- 
man  v.  Horton,  17  Conn.  481  ;  Edgar-  scinds,  unless  fraudulently  obtained 
ton  /•.  Wolf,  6  Gray,  453.  from  bim.    Chicago  Life  Association  v. 

1  Whether  a  minor  who  deals  with  Hunt,  127  111.  259.  He  cannot  at  all 
an  adnlt  whom  he  fraudulently  induces  events  rescind  without  returning  what 
to  think  him  of  full  age  is  estopped  he  received,  so  far  as  it  remains.  36 
from  avoiding  the  transaction  for  in-  Nek  51  ;  77  Tex.  240,301  ;  68  Miss.  60; 
fancy,  see  136  Mass.  405 ;  §  426.  If  69  Miss.  328.  But  if  the  property  was 
an  infant  retains  the  property,  the  adult  injured  while  in  his  keeping,  he  is  not 
cannot  recoup  its  use  during  minority  liable  by  the  adult  standard  of  bailment, 
against  the  price  demanded  back.  138  Stack  v.  Cavanaugh  (1894),  N.  H. 
Mass  310.     Some  of  the  latest  cases  lay  2  Supra,  §  406.     See  112  N.  C.  261. 

much  stress  upon  the  inherent  fairness  or  3  Towle  v.  Dresser,  73  Me.  252. 
unfairness  of  a  transaction,  where  one  Especially,  as  the  authority  of  the 
party  or  the  other  tries  to  recover  his  agent  was  not  especially  objected  to 
consideration.  See  Johnson  v.  Mutual  when  the  notice  was  given  and  the  de- 
Life  Co.  (1894),  Minn.  If  an  in-  mand  made  upon  the  adult.  lb. 
fant  advanced  money  on  his  voidable 
contract,  it  is  lost  to  him  when  he  re- 

727 


447 


THE   DOMESTIC    RELATIONS. 


[PART   V. 


cause  of  her  infancy.1  It  would  appear  from  some  late  American 
cases,  that  the  wife  still  continuing  covert  after  becoming  of  age, 
acts  which  might  constitute  ratification  in  ordinary  cases  may 
not  always  be  set  up  against  her.2  That  her  husband  prevented 
her  from  disaffirming  upon  her  majority  is  a  good  excuse  for  her 
delay  while  he  lived.3  On  the  other  hand  it  has  been  held  that 
when  a  deed  is  disaffirmed  because  of  the  wife's  minority  it  is 
avoided  as  to  the  husband  who  joined  her  in  making  it.4  But  a 
married  woman  is  sometimes  estopped  by  her  own  acts  ;  as  in  a 
case  where  her  equitable  interest  in  land  was  sold  while  she  was 
a  minor,  together  with  the  interests  of  adult  parties,  and  she  re- 
ceived her  share  of  the  proceeds  some  years  after  attaining 
majority.5  It  would  appear  that  any  affirmance  which  a  wife  in 
a  just  transaction  may  make  with  her  husband's  acquiescence 
and  her  own  free  consent  after  reaching  majority,  will  bind  her.6 
And  her  disaffirmance  is  subject  to  the  usual  qualifications  ap- 
plicable to  infants  in  general.  Coverture  is  fast  becoming 
unpopular  in  these  days,  and  the  disabilities  of  infancy  and  cover- 
ture are  at  any  rate  separate  and  independent ;  and  the  mere  fact 
that  both  occur  in  connection  with  the  same  act  does  not  give  to 
either  disability  greater  force  than  it  would  have  had  separately.7 


1  Harbman  v.  Kendall,  4  Ind.  403. 

2  Matherson  v.  Davis,  2  Cold.  443  ; 
Miles  v.  Liugerman,  24  Ind.  385.  The 
equity  doctrine,  to  argue  from  the  case 
of  marriage  settlements,  appears  to  lie 
that  the  wife  may  by  acts  give  validity 
to  such  deeds,  after  attaining  full  age 
and  notwithstanding  her  coverture. 
Sec  su/irn,  §  399.  Disaffirmance  soon 
after  attaining  majority  is  permitted. 
Scranton  v.  Stewart,  J2  Ind.  69,  92; 
86  Wis.  378.  But  a  reasonable  time 
after  discoverture  is  allowed  an  infant 
wife,  at  cases  now  decide  the  point, 
though  length  <>f  time  may  have  inter- 
vened.     See    Schouler,  Hub.  &  Wife, 

178;  Sims  v.  Everhardt,  102  U.  S. 
300;  Wilson  v.  Branch,  77  Va.  65  j  86 
Ind.  :.'(>.■{,  r.77 ;  Richardson  <•.  Pate,  93 
Ind.  423  ;  ">i  Ark.  294  ;  supra,  Part  II. 
c.  6.  Inl.iiit  husband's  conveyance 
roidable.     i  Heisk.  268. 

728 


"Where  one  is  under  two  disabilities 
—  infancy  and  coverture  —  when  a 
cause  of  action  accrues,  the  statute  of 
limitations  will  not  begin  to  run  until 
both  are  removed.  North  v.  James,  61 
Miss.  761.  But  see  confra,  as  to  sus- 
pending the  running  of  the  statute, 
Farish  v.  Cook,  78  Mo.  212;  Ortiz  v. 
De  Senavides,  61  Tex.  60. 

3  Sims  v.  Bardoner,  86  Ind.  87. 

4  Craig  v.  Van  Bebber,  100  Mo. 
584. 

5  Anderson  v.  Mather,  44  N.  Y.  249. 
And  see  Schmitheimer  v.  Eiseman,  7 
Bush,  298. 

8  Sims  v.  Smith,  99  Ind.  469.  And 
see  Ellis  V.  Alford,  64  Miss.  8;  Logan 
v.  Gardner,  136  Penn.  St.  588. 

'  186  Penn.  St.  588.  Hence,  when 
a  woman  becomes  both  discovert  and  of 
full  age,  she  may  be  estopped  like  any 
other  person  sui  juris.     136  Penn.  St. 


CHAP.  V.]        RATIFICATION,    ETC.,    OF   CONTRACTS.  §  448 

Modern  legislation  may  in  a  sense  remove  the  disability  of 
coverture;  bat  tins  does  not  remove  the  disability  of  infancy, 
with  its  incidental  protection.1 

§  448.  Rules  ;  How  far  Chancery  may  elect  for  the  Infant.  — 
By  a  well-known  rule  of  equity,  the  proceeds  of  lands  sold 
during  minority  retain  the  character  of  real  estate,  and  where 
the  personal  estate  becomes  land  its  original  character  is  like- 
wise retained.  And  such  property  remains  real  or  personal 
still,  even  after  the  infant  attains  majority,  so  long  as  there 
is  no  act  or  intent  on  his  part  to  change  its  character;2  but 
the  character  ceases  when  he  attains  majority,  and  obtains 
possession  of  the  proceeds.3 

A  court  of  chancery,  however,  as  the  protector  of  the  young, 
has  an  extensive  jurisdiction  of  matters  affecting  an  infant's 
property  rights,  and  may,  upon  a  full  hearing,  the  infant  himself 
being  duly  summoned  and  his  rights  duly  represented,  enter  a 
decree  which,  if  procured  without  fraud  or  undue  injury,  will 
be  binding.  Of  this  jurisdiction  we  have  already  treated,4  as 
also  of  statutes  authorizing  sales  of  an  infant's  real  estate.5  In- 
fants must  be  parties  to  bills  in  equity,  as,  for  instance,  in  affect- 
ing their  title  to  real  estate  ;  and  making  their  guardians  parties 
is  not  sufficient,  as  it  is  generally  ruled,  without  service  of  process 
upon  the  infant  himself  or  the  usual  publication  of  notice.6 


588.     Clear  disaffirmance  of  a  deed  ex-  4  Part  IV.  cs.  6,  7.     But  as  to  -  al- 

ecuted  during  minority  should  be  sea-  lowing  the  iufant  his  day  "  on  reaching 

Bonably  made  by  her,   or  she  may   be  majority,  see  next  chapter.     Jurisdic- 

estopped     by    her    own    conduct    and  tion  of  the  court  over  an  infant  ward 

laches.    136  Penn.  St.  588.    Nor  should  is  not  taken  away  because  the  infant 

she  retain  benefits  and  yet  claim  the  is  insane.     In  re   Edwards,  L.   R.   10 

right  to  avoid.     88  Ky.  515.     Still  less  Ch.  D.  605. 

should  she,  after  reaching  age,  use  the  6  lb. ;  Ohappell  v.  Doe,  49  Ala.  153. 

consideration  in  a  manner  which  indi-  6  Tucker  v.  Bean,  65  Me.  352  ;  Row- 

cates  affirmance  and  then  seek   to  dis-  land  v.   Jones,  62   Ala.   322 ;    Cook  v. 

affirm.     119  Ind.  187.  Rogers,  64   Ala.  406;  Bonnell  v.  Holt, 

i  See  82  Me.  260.  89  111.  71  ;    Carver  v.  Carver,  64  Ind. 

2  Foreman  t\  Foreman,  7  Barb.  215.  195.       But   see    Burrus   v.   Burrus,  56 

3  Forman  v.  Marsh,  1  Kern.  544.  Miss.  92 ;  Scott  v.  Porter,  2  Lea,  224. 
Upon  the  death  of  the  infant  after  such  And  as  to  cancelling  a  purely  personal 
conversion  the  inheritance  or  distrilm-  contract  this  rule  is  all  the  more  imper-. 
tion  is  according  to  the  original  char-  ative.  Insurance  Co.  v.  Bangs,  103 
acter  of  the  property.  See  Paul  v.  U.  S.  Supr.  435.  Concerning  joinder 
York,  1  Tenu.  Ch.  547.  of  guardian,  see  next  chapter. 

729 


§449 


THE   DOMESTIC    RELATIONS. 


[PART  V. 


But  the  practical  result  must  be,  wherever  chancery  juris- 
diction is  broadly  upheld,  that  the  court  in  many  instances,  the 
infant  being  duly  a  party  to  the  proceedings,  elects  foi  him.1 
The  infant's  own  affirmance  of  the  decree  in  chancery  or  under 
statute,  as  by  accepting  and  retaining  the  benefits',  delaying  pro- 
cedure to  reopen  the  matter  for  alleged  fraud  or  other  infirmity, 
is  of  course  a  double  confirmation.2 


CHAPTER   VI. 


ACTIONS   BY   AND   AGAINST   INFANTS. 


§  449.  Actions  at  Law  by  Infants  ;  Suit  or  Defence  by  Next 
Friend  or  Guardian.  —  It  is  a  fundamental  principle  that  the 
rights  of  property  shall  vest  in  infants,  notwithstanding  their 
tender  years ;  and  incidentally  thereto  they  have  the  right  of 
action.  Yet  it  is  clear  that  if  the  infant  be  unfit  to  make  a 
contract  he  is  unfit  to  sue  on  his  own  behalf.  Hence  is  the  rule 
that  while  process  is  sued  out  in  the  infant's  own  name,  it  is  in 
his  name  by  another ;  that  is  to  say,  some  person  of  full  age 
must  conduct  the  suit  for  him.  The  same  principle  applies  to 
all  civil  actions,  whether  founded  on  a  contract  or  not. 

At  common  law,  infants  could  neither  sue  nor  defend,  except 


1  Chancery  may  authorize  leases  for 
the  enhancement  of  the  real  estate  of 
infants  if  manifestly  f'>r  their  interests. 
Talbot  v.  Provine,  7  Uaxt.  502.  As  to 
partition  sale  held  binding,  see  Cocks 
v.  Simmons,  57  Miss.  183;  Seott  v. 
Porter,  2  Lea,  224.  As  to  decree  en- 
forcing  a  vendor's  lien,  see  Cocks  v. 
Simmons,  57  Miss.  183.  As  to  sale  for 
maintenance  <>r  better  investment,  see 
Sharp  '■•  Findley,  59  Ga.  722;  supra, 
Part  IV.  cs.  6,  7.  Chancery  may  com- 
promise  a   claim    in    which  infants   are 

Interested,  '••  1  n  against  oext  friend  <>r 
guardian  mi  litem,     /»  re  Birchall,  10 

730 


Ch.  D.  41.  Or  exercise  discretion  as 
to  selling  either  realty  or  personalty,  or 
both.  Jones  0.  Sharp,  9  Heisk.  660. 
Ami  see  Knotts  i\  Stearns,  91  l'.  S. 
638  ;  Carr  v.  Branch,  85  Va.  597.  De- 
cree sustained,  notwithstanding  the 
birth  of  a  posthumous  child  not  con- 
sidered when  the  sale  was  ordered. 
lb.  See  also  Goodman  v.  Winter,  64 
Ala.  410. 

a  Walker  v.  Mnlvean,  76  111.  18: 
Corwin  v.  Slump,  76  111.  246.  See  fur- 
ther, as  to  the  binding  effect  of  decrees 
and  judgments,  next  chapter. 


CHAP.  VI.]     ACTIONS    BY    AND    AGAINST   INFANTS.  §  449 

by  guardian.  They  were  authorized,  by  Stat.  Westm.  1,  to  sue 
by  prochein  ami  (or  next  friend)  against  the  guardian  in  chiv- 
alry who  had  aliened  any  portion  of  the  infant's  inheritance.1 
Stat.  Westm.  2,  c.  15,  extended  this  privilege  to  all  other  cases 
where  they  could  not  sue  formerly.  Lord  Coke  lays  down  that, 
since  these  statutes,  the  infant  shall  sue  by  prochein  ami  and 
defend  by  guardian.2  And  Fitzherbert  is  to  the  same  effect.3 
But  Mr.  Hargrave  thinks  it  probable  that  Fitzherbert  and  Lord 
Coke  did  not  mean  to  exclude  the  election  of  suing  either  by 
prochein  ami  or  by  guardian.4  And  whether  they  did  or  not, 
guardianship  at  the  present  day,  so  unlike  guardianship  as  they 
understood  it,  justifies  the  modern  practice  ;  which  is  to  appoint 
a  special  person  as  prochein  ami  only  in  case  of  necessity,  where 
an  infant  is  to  sue  his  guardian,  or  the  guardian  Mill  not  sue  for 
him,  or  it  is  improper  that  the  guardian  should  be  the  prochein 
ami.  In  other  cases,  the  rule  is  to  sue  by  guardian  or  prochein 
ami.5  But  an  infant  may  sue  by  his  next  friend  though  he 
have  a  guardian,  if  the  guardian  does  not  dissent.6  And 
in  some  States  the  choice  allowed  the  infant  is  still  more 
liberal.7  Not  unfrequently,  too,  the  next  friend  who  brought 
the  suit  is  removed  and  another  appointed,  on  the  ground  that 
it  is  for  the  infant's  benefit.8 

An  infant  cannot  prosecute  an  action  either  in  person  or  by 
attorney.  This  is  well  settled.9  But  advantage  must  be  taken 
by  plea  in  abatement  of  the  infant's  suing  by  attorney,  or  by 
application  to  a  judge,  or  the  court,  for  it  is  not  error  after 
judgment  either  on  verdict  or  by  default.10     The  same  rules  are 

1  Macphers.  Inf.  13,  352.  7  Hooks  v.  Smith,  IS  Ala.  338. 

2  2  Inst.  261,  390;  Co.  Litt.  135  6;  8  Barwick  v.  Rackley,  45  Ala.  215  ; 
3  Robinson's  Pract.  229.  Martin  v.  Weyman,  2G  Tex.  460 ;  Mills 

3  F.  N.  B.  [27]  H  v.  Humes,  22  Md.  346.     As  where  the 

4  Harg.  n.  Co.  Litt   135  b.  next  friend  refuses  to  appeal.     Dupuy 

5  Claridge  v.  Crawford,  1   Howl.  &  v.  Welsford,  28  W.  R.  762. 

Ry.  13  ;  3  Robinson's  Pract.  230 ;  9  Cro.  Eliz.  424  ;  Cro.  Jac.  5  ;  1  Co. 
Yonnge  v.  Younge,  Cro.  Car.  86 ;  Good-  Litt.  135  6,  Harg.  n.,  220  ;  Miles  v.  Boy- 
win  v.  Moore,  Cro.  Car.  161;  Apthorp  den,  3  Pick.  213;  Clark  v.  Turner,  1 
v.  Backus,  Kirby,  407 ;  M'Giffin  v.  Stout,  Root,  200  ;  Mockey  v.  Grey,  2  Johns. 
Coxe,  92;  Blackman  v.  Davis,  42  Ala.  192;  Timmons  v.  Timmons,  6  Ind.  8; 
184.  Nicholson  v.  Wilborn,  13  Ga.  467. 

6  Thomas  v.  Dike,  11  Vt.  273;  Rob-  10  2  Saund.  Pleading,  207;  Bird  v. 
Bon  v.  Osborn,  13  Tex.  298.  Pegg,  5  B.  &  Aid.  418 ;  Finlev  v.  Jowle, 

731 


§  450  THE   DOMESTIC   RELATIONS.  [PART  V. 

frequently  applied  to  a  parent  who  sues  on  behalf  of  minor 
children,  but  not  as  guardian  or  next  friend.  Where  infancy 
of  the  plaintiff  is  pleaded  in  abatement  to  a  suit  brought  by  a 
minor  in  his  own  name  without  any  guardian  or  next  friend,  the 
court  may  allow  the  infant  to  amend  by  inserting  in  his  writ 
that  he  sues  by  A.,  his  next  friend.1  Nor  does  this  rule  deprive 
the  infant  of  the  professional  services  of  an  attorney ;  it  relates 
to  the  parties  to  the  suit.2  Where  an  infant  has,  after  bring- 
ing suit  (not  by  guardian  or  next  friend),  become  of  age,  no 
amendment,  nor  appearance  of  a  guardian  or  next  friend  is 
necessary;3  and  the  judgment  becomes  binding  upon  him  if 
entered  after  his  majority.4 

§  450.  Action  at  Law  by  Infants  ;  The  Next  Friend.  —  Gener- 
ally speaking,  when  an  action  is  brought  by  an  infant,  he  sues 
in  his  own  name  by  a  certain  person  as  next  friend.  A  prochcin 
ami,  commencing  his  authority  with  the  writ  and  declaration, 
can  only  maintain  the  suit  for  such  causes  of  action  as  may  be 
prosecuted  without  special  demand  ;  as  for  personal  injuries  done 
to  the  infant,  or  for  sums  of  money  where  the  writ  itself  is  con- 
sidered as  the  demand.5  In  England,  it  was  once  considered 
that  the  special  admission  of  a  guardian  for  an  infant  to  appear 
in  one  case  would  serve  for  others.6  But  the  modern  rule  is 
that  the  special  admission  of  prochcin  ami  or  guardian,  to  prose- 
cute or  defend  for  an  infant,  shall  not  be  deemed  an  authority 
to  prosecute  or  defend  in  any  but  the  particular  action  speci- 
fied.7 Sometimes  there  will  be  an  advantage  in  suing  by  guard- 
ian if  this  can  legally  be  done.8  In  any  event,  the  interests  of 
the  person  who  sues  as  guardian  or  next  friend  must  not  be 
hostile  to  that  of  the  infant.9 

The  guardian,  like  the  prochcin  ami,  is,  in  English  practice, 

IS  East,  6 ;  Apthorp  v.  Backus,  Kirbv,  husband's  action  as  next   friend  after 

407.     But  as  to  tin-  infant  himself,  see  his  infant  wife  becomes  of  age. 
Bird  ?•.  Pegg  ;  Jonea   v.  Steele,  36  Mo.  *  Hicks  v.  Beam,  112  N.  C.  642. 

"524.     Ee  may  repudiate  the  judgment         5  Miles  v.  Boyden,  3  Pick.  219. 
if  entered  againsl  him.     112  X.  C.  642.         6  Archer  v.  Frowde,  1  Stra.  304. 

1   Blood  v.  Harrington,  8  Tick.  552.  72  Saund.    Plead.    207;   Macphers. 

-   People  ''.  X.w  York,  11  Wend.  164.  Inf.  353. 

3  Woodman   v.  Bowe,  59  N.  II.  453.         »  3  Robinson's  Pract.  229. 
See  66   Ga.    177,  as    to  amendment  of  9  George  V.  High,  85  N.  O.  113;  Pat 


terson  v.  Pullman,  104  111.  80. 


732 


CHAP.  VI.]     ACTIONS   BY   AND   AGAINST   INFANTS.  §  450 

appointed  by  the  court  before  the  plaintiff  can  proceed  in  the 
action,  and  no  legal  right  of  parentage  or  of  guardianship  will 
enable  any  one  to  act  for  the  infant  without  such  appointment.1 
But  where  the  infant's  father,  being  a  necessary  witness,  could 
not  properly  be  prochein  ami  in  a  certain  suit,  the  court,  on 
motion,  appointed  a  friend  of  the  family  with  the  father's  con- 
currence.2 And  the  father's  natural  right  to  represent  his  child 
as  next  friend  is  to  be  respected.3  No  authority  from  the  infant 
to  the  guardian  or  prochein  ami  to  sue  is  necessary,  though  the 
infant  be  on  the  very  eve  of  majority  ;  but  it  is  intimated  that 
the  court  might  interfere  if  fraud  were  shown.4  An  action  to 
recover  money  or  personal  property  belonging  to  an  infant  may 
be  brought  in  the  infant's  name  by  his  next  friend,  though  he 
has  a  general  guardian.5  As  the  prochein  ami  is  an  officer  of 
the  court,  if  the  infant  wishes  him  removed  he  must  apply  to 
the  court  for  that  purpose,  and  an  entry  of  the  change  should  be 
made  of  record.6  But  on  the  plaintiff  coming  of  age,  he  may,  it 
seems,  remove  the  prochein  ami  of  his  own  authority,  and 
appear  thereafter  by  his  own  attorney.7 

While,  in  theory,  however,  the  prochein  ami  is  still  legally 
appointed  by  the  court,  such  formalities  are  now,  in  practice, 
very  generally  waived.  In  Connecticut,  Ehode  Island,  Massa- 
chusetts, Virginia,  and  other  States,  no  entry  of  record  is  requi- 
site admitting  a  person  to  sue  as  guardian  or  next  friend,  the 
recital  in  the  writ  and  count  being  deemed  sufficient  evidence 
of  admission  unless  seasonably  challenged  by  the  opposite  party, 

1  Macphers.  Inf.  353.  leave  of  courr  where  the  next  friend's 

2  Claridge  v.  Crawford,  1  Dowl.  &  interest  is  adverse  to  the  infant.  104 
Ry.  13.  111.  80.     Local  codes  furnish   their  re- 

3  Woolf  v.  Pemberton,  6  Ch.  D.  19.  spective  rules  of  practice;  and  statute 
See  Strong  v.  Marcy,  33  Kan.  109.  formalities     should     be    carefully    ob- 

4  Morgan  v.  Thorne,  9  Dowl.  228.  served.  But  special  averments  of  in- 
And  see  Barwick  v.  Rackley,  45  Ala.215.  fancy,  etc.,  are  not  commonly  required. 

5  Segelken  v.  Meyer,  94  X.  C.  473.  91  laid.  522.     And  see  as  to  form,  66 

6  Davies    v.   Locket,   4    Taunt.  705;  Tex.  421. 

Morgan  v.  Thorne,  supra.  Whether    an     infant    or    his    next 

1  See  Bac.  Abr.  Infant,  K.  2 ;  Pat-  friend  can  sue  in  forma  pau]>eris,  see  7 

ton  v.  Furthmier,  16  Kan.  29.  Lea,  717  ;  92  Ind.  103  ;  13  Abb.  (N.  Y.) 

Dismissal  of  action  by  next  friend  N.  Cas.  182.     A  bond  uuder  some  codes 

for  infant,  because  not  for  the  infant's  is  required  of  the  next  friend.     19  Fla. 

interest.     59    Iowa,    634    (code).     And  438.     As  to  actions  brought  in  the  name 

see  dismissal  of  suit   brought  without  of  the  State,  see  66  Md.  325. 

733 


§  450  THE   DOMESTIC    RELATIONS.  [PART  V. 

when  the  order  may  be  supplied,  or  the  court  on  its  discretion 
may  remove  the  party.1  In  New  York,  on  the  other  hand,  a 
prochcin  ami  must  be  appointed  for  the  infant  plaintiff  before 
process  is  sued  out ;  and  such  is  the  practice  in  some  other  parts 
of  this  country.2  In  some  States  it  is  deemed  proper  to  prove 
infancy  in  advance,  and  hence  the  right  to  sue  by  next  friend.3 

So,  too,  in  this  country,  more  deference  seems  to  be  shown  to 
the  infant's  wishes  than  in  England.  Thus,  in  Massachusetts, 
the  court,  on  the  personal  petition  of  a  minor  twenty  years  of 
age,  withdrew  the  authority  of  the  prochcin  ami,  and  ordered  all 
further  proceedings  in  the  suit  postponed  until  the  minor  should 
attain  full  years.4  In  the  choice  of  a  guardian  and  prochcin  ami, 
a  minor  above  fourteen  has  much  latitude  of  discretion ;  and 
when  he  attains  full  age  he  may  enter  the  fact  upon  record, 
and  without  further  formality  proceed  to  conduct  the  suit  for 
himself.5 

Where  an  infant  has  brought  an  action  by  his  next  friend, 
and  has  recovered  damages  which  have  been  received  by  the 
attorney,  the  money  is  the  money  of  the  infant,  and  he  may  sue 
the  attorney  for  it.6  The  codes  of  some  States  require  payment 
of  the  amount  recovered  into  court,  until  a  guardian  is  appointed 
to  hold  the  fund.  Upon  a  writ  of  error  the  court  may  in  its 
discretion  select  another  next  friend  for  the  minor.7 

A  prochcin  ami  is  liable  for  costs,  and  the  remedy  is  against 
him  for  attachment,  which  should  be  absolute  in  the  first 
instance.8     This  is  the  English  practice.     It  would  appear  that 

1  See   Guild   v.    Cranston,   8   Cush.  3  Byers  v.  Des  Moiues,   &c.  R.  R. 

506  ;    Boynton    v.   Clay,    58   Me.    236 ;  Co.,  21  Iowa,  54. 

Burwell    v.    Corbin,    1     Hand.    151;    3  i  Guild  v.  Cranston,  8  Cush.  506. 

Robinson's  Pract.  230 ;  Trask  v.  Stone,  5  Clark    v.    Watson,    2    Ind.    399; 

7    Mass,   211  ;    Jndson  v.   Rlanchard,  3  Shuttlesworth  v.  Hughey,  6  Rich.  329. 

Conn.    .">7'»;     Klaus    v.    State,   54    Miss.  B  Collins   v.    Brook,  4   Hurl.   &  Nor. 

644.     And  see  Stumps  v.  Kelley,  22  111.  276.     And  see  Smith  v.  Red  US,  9  Ala. 

140;    Cray    v.    Parke,    L55    Mass.    443;  99. 

Murray   r.    Barber,   16   I!    [.512.     The  7  Ames  v.  Ames,  148  111.  321. 

authority    of     next    friend    continues,  8  Newton  v.  London,  Brighton,  &c. 

though  with. ml   appointment,  until  the  R.  R.  Co.,  7Dow.&L  328(1849);  Dow 

court  removes  him.     l  55  Mass.  443.  v.  Clark,  2  Dowl.  302.     See  Trice  v. 

■  Wilder  -     Ember,   12  Wend   191;  Duygan,  4  Man.  &  Gr.  225. 
Haines  0.  Oatman,  2  Doug.  430;  Grant- 
man  v.  Thrall,  n  Barb.  173. 

784 


CHAP.  VI.]    ACTIONS    BY    AND    AGAINST   INFANTS.  §  451 

execution  cannot  issue  against  the  infant  himself;  and  this  from 
the  very  circumstance  that  the  next  friend  is,  in  theory,  one 
who  comes  forward  to  assume  all  such  liabilities.1  But  in  con- 
formity with  statutes  in  Massachusetts,  it  is  held  that  aprochein 
a  mi,  as  such,  is  not  liable  for  costs;2  nor  does  he  seem  to  be 
always  strictly  considered  in  our  courts  a  party  to  the  suit;3  and 
the  infant  plaintiff  is  made  liable  for  his  own  costs.4  No  infant 
plaintiff  is  concluded  by  a  settlement  of  the  case  which  his  next 
friend  makes  out  of  court  without  a  formal  judicial  sanction.5 
Nor  will  a  settlement  in  court  ou  a  judgment  by  agreement  be 
permitted  to  stand  which  appears  collusive  to  the  child's 
prejudice.6 

§  451.  Action  at  Law  against  Infant ;  the  Guardian  ad  litem. 
—  An  infant  can  appear  and  defend  in  civil  suits  by  guardian 
only,  and  not  by  attorney,  or  in  person.7  He  cannot  answer  by 
next  friend.8  The  process  is  the  same  against  an  infant  as  in 
ordinary  cases ;  but  he  needs  some  one  to  conduct  his  defence, 
and  hence  every  court,  wherein  an  infant  is  sued,  has  power  to 
appoint  a  guardian  ad  litem  for  the  special  purposes  of  the  suit, 
since  otherwise  he  might  be  without  assistance.9  The  infant 
cannot  nominate  an  attorney,  nor  by  accepting  service  make 
himself  a  party  to  the  action.10  It  is  not  sufficient  for  a  proper 
defence  and  a  binding  judgment  against  the  infant  that  his 
parents  in  fact  represented  him  and  employed  counsel.11 

A  guardian  ad  litem  is  one  appointed  for  the  infant  to  defend 

1  lb.;  Stephenson  v.  Stephenson,  5  Tripp  v.  Gifford,  155  Mass.  108; 
3  Hey.  123;  Ferryman  v.  Burg.ster,  6  O'Dounell  v.  Broad,  149  Penn.  St.  24. 
Port.  (Ala.)  199;  Sproule  v.  Botts,  5  Though  the  next  friend  be  the  child's 
J.  J.  Marsh.  162.     But  see  Proudfoot  father,  it  is  the  same.     lb.\  §431. 

v.  Poile,  3  Dow.  &  L.  524;  Macphers.  6  149  111.  73;  97  Ala.  201. 

Inf.  356,  357,  and  cases  cited.     As  to  7  Co.  Litt.  88  b,  n.  16,  135  b ;  2  Stra. 

practice    under   New    York    Code,    see  784;  Macphers.  Inf.  358;  Alderman  v. 

Linner  v.  Cronse,  61  Barb.  289.     As  to  Tirrell,  8  Johns.  418  ;  Knapp  v.  Crosby, 

the  infant's  own  testimony  of   age  in  1  Mass.  479 ;    Miles  v.  Boyden,  3  Pick, 

such   suits,  see   Hill    v.    Eldridge,    126  213;    Bedell  v.  Lewis,   4  J.  J.  Marsh. 

Mass.  234.  562  ;  Starbird  v.  Moore,  21  Vt.  529. 

2  Crandall  v.  Slaid,  11  Met.  288.  8  Bush  v.  Liuthicum,  59  Md.  344. 
8  Brown  v.  Hull,  16  Vt.  673.                        9  Bac.  Abr.  Guardian,  B.  4. 

4  Howett  v.  Alexander,  1  Dev.  431  ;  10  Finley  v.  Robertson,  17  S.  C.  435; 

Smith  v.  Floyd,  1   Pick.  275.     Cf.  stat-  66  Cal.  53. 

utes  of  other  States.     Kleff el  v.  Bullock,  u  152  Mass.  585. 
8  Neb.  336. 

735 


451 


THE   DOMESTIC   RELATIONS. 


[PART    V. 


in  the  particular  action  "brought  against  him,  and  is  therefore  to 
be  distinguished  from  guardians  of  the  person  and  estate.1  If 
there  be  a  general  chancery,  probate,  or  testamentary  guardian 
already  appointed,  it  is  his  place,  generally  speaking,  to  defend 
the  infant  from  all  suits,  so  long  as  his  authority  over  the 
infant's  property  continues  and  his  interest  is  not  adverse  in  the 
suit;  this  being,  however,  a  matter  usually  regulated  in  this 
country  by  statute.2  This  guardian  ought  to  be  a  person  with 
no  interests  to  regard  except  those  of  the  infant  defendant ; 3 
he  should  have  no  interest  adverse  to  the  party  he  appears 
for. 

What  has  been  observed  of  the  appointment  of  prochein  ami 
may  be  said,  in  general,  of  that  of  the  guardian  ad  litem.  The 
two  correspond,  and  the  principles  of  law  applicable  to  the  one 
are  in  general  to  be  applied  to  the  other.4  In  a  criminal  case 
no  guardian  ad  litem  is  appointed.  But  in  a  civil  case  proceed- 
ings against  an  infant  are  liable  to  be  reversed  and  set,  aside  for 
irregularity,  where  no  guardian  ad  litem  has  been  appointed  for 
him,  unless,  perhaps,  his  regular  guardian  having  no  adverse 
interest  has  appeared  in  his  defence ;  and  process  must,  besides, 
have  been  first  regularly  served  upon  the  infant ;  though  in  this 
latter  respect  the  rule  of  the  several  States  is  not  uniform.5 


1  Larkin  v.  Mann,  2  Paige,  27 ; 
Roberts  v.  Stanton,  2  Munf.  129;  Bac. 
Abr.  (Juardian,  supra,  cases  cited  by 
Bouvier. 

-  See  Hughes  v.  Seller,  34  Ind.  337  ; 
64  Cal.  529  ;  Manx  v.  Rowlands,  59 
Wis.  llu.  See  82  Ky.  226.  Under 
various  practice  codes,  infants  should 
be  specially  defended  by  a  guardian  ad 
litem,  and  aot  by  the  general  guardian. 
Bearinger  v.  Pelton,  78  Mid.  109;  94 
N.  C  17.;. 

3  Hence  the  plaintiff's  husband 
Bhonld  not  be  appointed.  Bicknell  v. 
Bicknell,  ~i  X   C.  127. 

1  Sei   Macphers.  Inf.  358. 

&  See   Abdi]   v.  Abdil,  26  Ind.  287  ; 

Jarmau   v.   Lucas,   L5  C.  B.  n.  s.  474  ; 

Frierson  v.  Travis,  39  Ala.  150;    Lar- 

1  iua  v.  Bullard,  88  N.  C.  ■'>■>.     In  some 

it   is   required   by  statute  that 

736 


process  shall  be  served  upon  the  in- 
fant defendant  personally,  also  upon 
his  father,  mother,  or  guardian.  Inger- 
soll  v.  Ingersoll,  42  Miss.  155;  Irwin  v. 
Irwin,  57  Ala.  614;  Helms  v.  Chad- 
bourne,  45  Wis.  60.  Service  on  the 
guardian  ad  litem  (as  well  as  the  in- 
fant), is  indispensable  to  his  appear- 
ance in  New  York  practice.  Ingersoll 
v.  Mangam,  84  N.  Y.  622.  See  also  63 
Cal.  554;  19  Fla.  852;  137  Penn.  St. 
569.  Only  personal  service  gives  juris- 
diction of  a  sail  against  an  infant;  and 
acceptance  of  service  is  no  equivalent. 
23  S.  C.  154,  187;  91  N.  C.  359.  A 
judgment  rendered  against  a  minor 
without  the  appointment  of  a  guardian 
ad  lii'  in  is  not  void,  but  rather  voidable. 
Walkeuhorst  v.  Lewis,  24  Kan.  420; 
Charley  v.  Kclley,  120  Mo.  135;  42 
Minn.  84;    134  Ind.  421.     Some  local 


CHAP.  VI.]    ACTIONS    BY    AND    AGAINST   INFANTS. 


§  451 


Irregularities  of  procedure  or  delay  in  the  appointment  are  often 
cured  by  the  judgment;  and  even  though  the  judgment  be  void- 
able, lapse  of  time  and  laches  on  the  part  of  an  infant  after 
reaching  majority  may  leave  him  altogether  without  an  oppor- 
tunity to  set  the  judgment  aside,  especially  if  no  prejudice  has 
resulted,  as  in  the  usual  case  of  his  voidable  transactions.1 

The  writ  and  declaration  in  actions  at  law  against  infants  are 
to  be  made  out  as  in  ordinary  cases.  In  English  practice,  where 
the  defendant  neglects  to  appear,  or  appears  otherwise  than  by 
guardian,  the  plaintiff  may  apply  for  and  obtain  a  summons, 
calling  on  him  to  appear  by  guardian  within  a  given  time ; 
otherwise  the  plaintiff  may  be  at  liberty  to  proceed  as  in  other 
cases,  having  had  a  nominal  guardian  assigned  to  the  infant.2 
A  like  rule  prevails  in  New  York  and  other  States.3  Courts 
will  go  so  far  for  protecting  an  infant  as  to  see  that  process  is 
properly  served,  a  guardian  ad  litem  appointed  for  him,  and  the 
formal  answer  filed. 4 

Infancy  may  be  specially  pleaded  in  bar.5  The  plaintiff 
replies  either  that  the  defendant  was  of  age,  or  that  the  goods 


statutes  provide  for  the  infant's  modi- 
fication of  a  judgment  against  him 
within  a  year  after  arriving  at  age. 
Kichards  v.  Richards,  10  Bush,  (517. 
But  the  judgment  is  prima  facie  correct, 
and  errors  must  be  prejudicial  to  the 
infant's  interest  in  order  to  be  thus 
availed  of.  Richards  v.  Richards,  10 
Bush,  617.  An  infant  may  appeal 
from  a  judgment  against  him,  or  have 
it  reversed  for  error,  at  any  time  during 
minority  without  waiting  for  his  ma- 
jority. Moss  v.  Hall,  79  Ky.  40.  Judg- 
ments at  law  are  voidable,  not  void. 
§407;  90  N.  C.  197.  Even  where  it 
does  not  appear  that  a  guardian  ad 
litem  appeared.  64  Cal.  529.  Some 
courts  pronounce  judgments  void,  under 
local  practice,  where  clearly  prejudicial 
to  the  infant,  if  the  formalities  of  service 
and  defence  by  guardian  are  omitted. 
See  137  Penn.  St.  569.  But  the  mere 
omission  to  appoint  before  bringing 
suit  is  not  a  jurisdictional  defect,  but 
an  irregularity  merely.  120  N.  Y.  433. 
'  47 


The  court's  jurisdiction  to  appoint 
is  not  impaired  by  the  guardian's  er- 
roneous acts  after  appointment.  127 
HI.  395.  And  see  79  Cal.  266.  The 
guardian  may  appeal  on  the  infant's 
behalf.     73  Md.  451. 

Statutes  sometimes  provide  that 
proceedings  against  uon-resident  de- 
fendants (infants  included),  may  be 
by  publication.  Bryan  v.  Kennett, 
113  U.  S.  179. 

1  See  Townsend  v.  Cox,  45  Mo.  401  , 
Barnard  v.  Heydrick,  49  Barb.  62;  .Mr- 
Murray  v.  McMurray,  60  Barb.  117. 
Wickersham  v.  Timmons,  49  Iowa,  267  , 
Maples  v.  Maples,  3  Houst.  458. 

2  See  Macphers.  Inf.  359. 

3  Van  Deusen  v.  Brower,  6  Cow. 
50 ;  Judson  v.  Storert  2  South.  544 : 
Clarke  v.  Gilmanton,  12  N.  II.  515. 

4  Alexander  v.  Frary,  9  Iud.  481. 

5  Clemson    v.   Bush,   2    Binn.  413 
Hillegass  v.  Ilillegass,  5  Barr,  97. 


737 


§452 


THE   DOMESTIC    RELATIONS. 


[PART  V. 


were  necessaries,  or  that  he  confirmed  the  contract  when  he 
came  of  age.1  If  there  be  several  defendants,  the  party  who  is 
a  minor  should  plead  his  infancy  separately.  Infancy  is  an 
issuable  plea;  and  it  may  be  pleaded  with  other  pleas  without 
leave  of  court.2  Where  there  are  several  issues,  one  of  which  is 
upon  the  plea  of  infancy,  that  being  found  for  the  infant,  the 
whole  case  is  disposed  of.3  An  infant  defendant  is  liable  to 
costs  in  the  same  manner  as  any  other  defendant,  notwith- 
standing he  has  a  guardian.4 

If  an  infant  comes  of  age  pending  the  suit,  he  can  assert  his 
rights  at  once  for  himself;  and  unless  he  does  so  he  cannot  gener- 
ally complain  of  the  acts  of  his  guardian  ad  litem.  Where  a 
person  is  of  age  and  sni  juris,  it  is  error  to  appoint  a  guardian 
ad  litemP 

§  452.  Chancery  Proceedings  by  or  against  Infants  ;  Corre- 
sponding Rule.  —  The  same  leading  principles  noticeable  in  suits 
at  law  are  to  be  recognized  in  equity  proceedings  by  or  against 
infants ;  and  the  doctrines  of  next  friend  and  guardian  ad  litem 
receive  ample  discussion  in  the  chancery  courts.6 

Among  the  miscellaneous  matters  of  chancery  practice  relat- 
ing to  infants  may  be  mentioned  proceedings  in  partition,  orders 
for  maintenance  and  education,  the  management  of  trust  funds  7 


1  See  as  to  proof,  Freeman  v.  Nichols, 
138  Mass.  313. 

*  15  &  16  Vict.  c.  76,  §  84.  See 
Delafield  v.  Tanner,  5  Taunt.  856; 
Dublin  &  Wicklow  R.  R.  Co.  v.  Black, 
8  Exch.  181. 

3  Rohrer  v.  Morningstar,  18  Ohio, 
579.  In  New  York  iufancy  may  he 
given  in  evidence  under  the  general 
i  me      Wailing  v.  Toll,  9  Johns.  141. 

4  Anderson  v.  Warde,  Dyer,  104; 
Gardiner  v.  Holt,  Stra.  1217.  Macpher- 
bod  says  that  the  guardian  of  an  infant 
defendant  is  subject  to  the  same  lia- 
bility for  costs  a-  the  prochein  ami,  ox 
the  guardian  of  an  infanl  plaintiff.  Mac- 
phers.  [nf.  361.  No  authority  is  given 
for  this  Jtati  ment,  and   it   seems  I  hal 

guardian  of  an  infant  defendant  is 
nol  liable.  Bee  Perryman  v.  Burg- 
Bter  6  Port.  (Ala.)  199.     Such  guardian 

738 


should  at  all  events  he  reimbursed  all 
reasonable  charges  incurred  in  the  case. 
Smith  v.  Smith,  69  111.  308.  A  guar- 
dian ad  litem  cannot  absolutely  bind 
those  whom  he  represents  by  a  contract 
with  an  attorney  in  the  suit  fixing  his 
compensation.  Cole  v.  Superior  Court, 
63  Cal.  86.     See  §  344. 

6  Mitchell  v.  Berry,  1  Met.  (Ky.) 
602.  And  see  Marshall  v.  Wing,  50  Me. 
62  ;  Stupp  v.  Holmes,  48  Mo.  89 ;  Bur- 
sen  v.  Goodspeed,  CO  111.  277 ;  Patton 
v.  Furthmier,  16  Kan.  29. 

6  Sec  1  Daniell,  Ch.  PL  3d.  Am.  ed. 
Gbetseq.  ;  lb.  150ei  seq.,  where  the  Eng- 
lish and  American  authorities  are  very 
fnllv  cited.  As  to  allowance  to  a  guar- 
dian ad  litem  for  fees  and  services,  see 
151    Mass.  164;  L38  111.  440. 

7  Infant  owners  of  land,  whether  by 
legal   or  equitable    title,  may  sue  in 


CHAP.  VI.]      ACTIONS    BY   AND    AGAINST    INFANTS. 


§452 


by  guardians  and  other  trustees,  and  the  award  of  custody. 
These  subjects  have  already  been  incidentally  considered  in  the 
course  of  this  treatise.  And  we  need  only  add  that,  in  the 
appointment  of  guardians  ad  litem,  courts  of  chancery  will 
exercise  a  liberal  discretion ;  that  in  all  proceedings  of  this 
character,  the  appointment  of  a  guardian  ad  litem  to  appear  in 
behalf  of  infants  interested  in  the  proceedings  is  regarded  as 
proper  and  even  necessary,  when  they  have  no  general  guardian 
or  the  general  guardian  has  an  adverse  interest ;  that  personal 
service  upon  the  infants,  besides,  is  usually  requisite ;  and  that 
a  decree  rendered  without  observance  of  such  formalities  may  be 
reversed  for  error.1  It  is  the  rule  in  many  States,  as  it  was  the 
old  practice  in  chancery,  to  allow  an  infant  his  day,  after  he 
attains  majority,  to  set  aside  a  decree  against  him ;  thus,  in 
effect,  rendering  such  decrees  in  chancery  voidable  rather  than 
binding,  so  far  as  he  is  concerned,  and  treating  him  more  than 
ever  upon  the  footing  of  a  privileged  person;2  for  it  is  not  tco 


chancery  to  charge  as  trustee  one  who 
has  received  the  rents  or  profits  of  their 
land.     66  Miss.  350. 

A  guardian  with  hostile  interest 
should  not  represent  the  ward  in  such 
cases. 

1  1  Daniell,  65,  150  ;  Rhett  v.  Martin, 
43  Ala.  86;  Girty  v.  Logan,  6  Bush, 
8;  Rhoads  t\  Rhoads,  43  111.  239;  Swain 
v.  Fidelity  Ins.  Co.,  54  Penn.  St.  455 ; 
Ivey  v.  Ingram,  4  Cold.  129;  39  Ark. 
61,  235.  Personal  service  on  the  infant 
dispensed  with  in  Georgia.     75  Ga.  792. 

2  Simpson  v.  Alexander,  6  Cold. 
619;  Kuchenbeiser  v.  Beckert,  41  111. 
173;  1  Daniell,  Ch.  PI.  3d  Am.  ed.  71, 
167.  Rule  now  abrogated  in  some 
States.  Phillips  v.  Dusenberry,  15 
N.  Y.  Supr.  348.  It  does  not  apply  to 
an  infant  trustee.  Walsh  v.  Walsh, 
116  Mass.  377.  And  see  O'Rorke  v. 
Bolinbroke,  2  App.  Cas.  814. 

Concerning  the  appointment,  the 
court's  discretion  is  favored  as  in  other 
interlocutory  proceedings.  Walker  v. 
Hull,  35  Mich.  488.  Giving  security  for 
costs  will  not  obviate  the  necessity  of 
suing  in  the   name  of   next  friend  or 


guardian.  Sutton  v.  Nichols,  20  Kan.  43. 
A  fund  in  chancery  should  not  be  given 
up  without  securing  the  legal  costs,  &c, 
of  the  guardian  ad  litem  or  his  solicitor. 
Sheahan  v.  Circuit  Judge,  42  Mich.  69. 
As  to  infant  married  woman's  guardian 
ad  litem  or  next  friend,  see  Ex  parte 
Post,  47  Ind.  142.  General  guardians 
do  not  represent  their  wards  in  fore- 
closure  proceedings,  but  a  guardian  ad 
litem  is  proper.  Sheahan  v.  Circuit 
Judge,  42  Mich.  69.  Where  the  infant's 
probate  guardian  has  an  adverse  inter- 
est in  the  suit,  there  should  be  a  guar- 
dian ad  litem  appointed.  Stinson  v. 
Pickering,  70  Me.  273.  Though  service 
on  the  infant  is  the  regular  rule  (supra, 
§  448),  it  is  held  in  some  States  that  a 
regular  guardian  may  defend,  and  may 
waive  the  service  of  process,  even 
where  the  minor's  realty  is  involved. 
Scott  v.  Porter,  2  Lea,  224  ;  Walker 
t;.  Veno,  6  Rich.  459.  As  to  infant's 
acceptance  of  service,  see  Wheeler  v. 
Ahenbeak,  54  Tex.  535. 

A  guardian  ad  litem  cannot  admit 
away  the  substantial  rights  of  infants ; 
his  passiveness  will   not  be   construed 

739 


§453 


THE   DOMESTIC    RELATIONS. 


[PART   V. 


much   to   say  that  at  all  times  and  under  all   circumstances 
infants  are  especial  favorites  of  our  law. 

•  §  453.  Binding  Effect  of  Decree  or  Judgment,  upon  the  Infant. 
—  An  infant  defendant  is  as  much  bound  by  a  decree  in  equity, 
rendered  upon  due  jurisdiction  and  fairly,  —  as  a  person  of  full 
a^e ;  therefore,  if  there  be  an  absolute  decree  made  against  a 
defendant  who  is  under  age,  and  who  has  regularly  appeared  by 
a  guardian  ad  litem  and  has  been  served  with  process,  he  will 
not  be  permitted  to  dispute  it  unless  upon  the  same  grounds  as 
an  adult  might  have  disputed  it;  such  as  fraud,  collusion,  or 
fundamental  error.1  As  to  the  binding  force  of  judgments  at 
law,  the  rule  does  not  seem  to  be  equally  strong.2  But  the  rule 
may  be  stated  that  in  the  main  an  infant  plaintiff  suing  by 
guardian  or  next  friend  is  as  much  bound  by  a  judgment  or 
decree  as  a  person  of  full  age.3  But  where  a  defendant  in  a 
suit  is  a  minor  at  the  time  of  service  of  summons,  and  the 


into  a  waiver  ;  nor  will  a  bill  in  equity 
be  taken  as  confessed  against  an  in- 
fant. Lane  v.  Hardwicke,  9  Beav.  148 ; 
Tucker  v.  Bean,  65  Me.  352  ;  Mills  v. 
Dennis,  3  Johns.  Ch.  367  ;  Turner  v. 
Jenkins,  79  111.  228 ;  Jones  v.  Jones,  56 
Ala.  612;  70  Ala.  479;  74  Ala.  415. 
<  )f  course  no  general  guardian  has  such 
a  right.     78  Mich.  109. 

An  infant  may  by  original  bill  im- 
peach a  decree  in  favor  of  his  guardian 
and  prejudicial  to  his  own  interests; 
nor,  on  general  chancery  rules,  need  he 
wait  until  attaining  full  age.  Sledge  v. 
Boone,  57  Miss.  222.  A  decree  not 
appealed  from  is  held  binding  upon  an 
infant  in  the  absence  of  fraud,  who- 
ever may  have  been  his  guardian  ad 
liti  m,  process  having  been  duly  served 
on  the  infant.  McOrosky  v.  Parks, 
13  S.  C.  90;  Cuyler  v.  Wayne,  64  Ga. 
78.  What  has  been  decreed  will  be 
presumed  rightly  done.  Whether  guar- 
dian </</  litem  or  prockein  ami  can  sub- 
mit, an  infant's  interests  to  arbitration, 
H  e  I  acker  v.  Dabbs,  12  Heisk.  18.  It 
seems  he  cannot,  except  upon  the  court's 

sanction.     §  450;   17  Ore.  42. 

1  1  Dan.  Ch.  Practice,  205;  Rivers 
v.  Durr,  46  Ala.  418;  Ralston  v.  Lahee, 

740 


8  Clarke  (Iowa),  17;  Watkins  v.  Law- 
ton,  69  Ga.  671  ;  In  re  Livingston,  34 
N.  Y.  555  ;  supra,  §  448.  And  see,  as 
to  allowing  the  infant  his  day,  §  542. 
But  see  Tibbs  v.  Allen,  27  111.  119; 
Driver  v.  Driver,  6  Ind.  286;  Ashton 
v.  Ashton,  35  Md.  496. 

As  to  the  method  of  impeaching  a 
decree  for  reasons  stated  in  text,  see 
129  111.  347,  131  111.  309;  Kings- 
bury v.  Buckner,  134  U.  S.  650.  The 
infant  need  not  proceed  by  bill  of 
review,  but  may,  while  a  minor,  file 
his  original  bill  to  impeach  the  de- 
cree, lb.  He  "lias  longer  time  than 
an  adult  by  reason  of  disability  to  in- 
stitute suits  for  relief.  90  Tenn.  445. 
But  the  decree  cannot  be  set  aside  as 
against  an  intervening  bona  fide  pur- 
chaser without  notice.     145  111.  500. 

An  infant,  duly  represented  by  guar- 
dian, is  concluded  by  a  probate  decree 
Simmons  v.  Goodell,  63  N.  H.  458.  And 
see  45  N.  J.  Eq.  632.  But  not  if  the 
probate  court  undertook  to  sell  or 
partition  land  without  jurisdiction.  81 
Mich.  167. 

-  Supra,  §§  407,449,451. 

«  Woodall  v.  Moore,  55  Ark.  22. 


CHAP.  VI.]      ACTIONS   BY   AND   AGAINST   INFANTS.  §  453 

record  shows  that  he  becomes  of  full  age  before  the  judgment 
is  taken,  a  court  is  disposed  to  uphold  the  judgment  unless  it 
can  be  impeached  fur  fraud.1  In  some  States,  doubtless  both 
judgments  at  law  and  decrees  of  equity  now  stand  on  the  same 
conclusive  footing,  and  the  infant  lias  not  his  opportunity  to 
show  cause  as  to  either  class  on  reaching  majority,  except  on 
the  grounds  above  stated.2  Wherever  the  substantial  interests 
of  infants  are  involved,  nothing  can  be  established  by  admissions 
or  stipulations  ;  but  proof  is  necessary.3  But  while  a  next  friend 
or  guardian  ad  litem  cannot  thus  surrender  substantial  rights  of 
the  infant,  he  may  bind  the  latter  by  arrangements  which  simply 
facilitate  the  trial  and  the  pursuit  of  justice.4  All  this  may  be 
likewise  said  of  counsel ;  for  the  authority  of  counsel  cannot  be 
greater  than  that  of  the  next  friend  or  guardian  employing  him.5 


1  Stupp  v.  Holmes,  48  Mo.  89.  And 
see  Blake  v.  Douglass,  27  Ind.  416; 
Hicks  o.  Beam,  1 12  N.  C.  642. 

2  Phillijjs  v.  Dusenberry,  15  N.  Y. 
Supr.  348  ;  Bickel  v.  Erskine,  43  Iowa, 
213.  As  to  either  guardian  ad  litem  or 
prochein  ami,  he  is  not  a  party  to  an 
action  in  such  sense  that  his  relation- 
ship to  the  judge  disqualifies  the  latter 
from  sitting   in  the  case.     Sinclair  v. 


Sinclair,  13  M.  &  W.  646 ;  Bryant  v. 
Livermore,  20  Minn.  313,  342,  aud 
cases  cited. 

3  Claxton  v.  Claxton,  56  Mich.  557  ; 
Crotty  v.  Eagle,  35  W.  Va.  143  ;  139 
111.  368;   146  111.  227. 

4  Kingsbury  v.  Buckner,  134  U.  S. 
650. 

6  Eidam  r.  Finnegan,  48  Minn.  53 ; 
35  W.  Va.  143. 

741 


454  THE   DOMESTIC   RELATIONS.  [PART  VI. 


PART  VI. 

MASTER  AND   SERVANT. 


CHAPTER   I. 


NATURE  OF  THE  RELATION  ;  HOW  CREATED  AND  HOW 
TERMINATED. 

§  454.   Definition  ;  this  not  strictly  a  Domestic  Relation.  —  A 

master  is  one  who  has  legal  authority  over  another ;  and  the 
person  over  whom  such  authority  may  be  rightfully  exercised  is 
his  servant.  The  relation  of  master  and  servant  presupposes 
two  parties  who  stand  on  an  unequal  footing  in  their  mutual  deal- 
ings ;  yet  not  naturally  so,  as  in  other  domestic  relations,  nor 
necessarily  because  the  subordinate  is  wanting  in  either  years  or 
discretion.  This  relation  is,  in  theory,  hostile  to  the  genius  of 
free  institutions.  It  bears  the  marks  of  social  caste.  Hence  it 
may  be  pronounced  as  a  relation  of  more  general  importance  in 
ancient  than  in  modern  times,  and  better  applicable  at  this  day 
to  English  than  American  society. 

Master  and  servant  has,  nevertheless,  been  uniformly  regarded 
as  one  of  the  domestic  relations.  In  lands  where  human  slavery 
is  lawfully  recognized,  it  is  pre-eminently  so;  and  thus  were  its 
foundations  deeply  laid  in  the  civil  law.  In  the  early  days  of 
the  common  law,  it  formed  a  distinct  part  of  the  English  house- 
hold  jurisprudence;  and  in  a  state  of  society  where  landed  pro- 
prietoi  are  few  and  wealthy,  where  rank  and  titles  are  maintained 
with  o  tentatious  display,  where  the  humble  born  are  taught  to 
obey  rather  than  aspire,  this  must  so  continue.  Not  only  cooks, 
butlers,  and  housemaids  are  thus  brought  within  the  scope  of 
742 


CHAP.  I.]       NATURE  OF  THE  RELATION.  §  454 

this  relation,  but  farm-hands,  plantation  laborers,  stewards, 
bailiffs,  factors,  family  chaplains,  and  legal  advisers. 

Thus  is  explained  what  at  first  may  seem  an  anomaly,  that 
the  common  law,  under  the  head  of  master  and  servant,  dis- 
cusses principles  which  in  this  day  belong  more  justly  to  the 
relation  of  principal  and  agent ;  aud  that  we  constantly  find  an 
offensive  term  used  in  court  to  denote  duties  and  obligations 
which  rest  upon  the  pure  contract  of  hiring.  Clerks,  salaried 
officers,  brokers,  commission  merchants,  all  are  designated  as 
servants  ;  and  our  topic  in  this  broad  sense  is  not,  if  words 
mean  anything,  within  the  influence  of  the  domestic  law  at  all. 
Nor  is  it  possible  to  extend  the  lines  so  as  to  include  these  per- 
sons without  abandoning  consistency  of  purpose,  and  yielding 
up  the  vital  principle  of  legal  classification. 

Were  the  writer  then  untrammelled  by  authority,  his  treat- 
ment of  this  topic,  as  one  of  the  domestic  relations,  would  be 
confined  to  what  are  denominated  at  common  law  menial  ser- 
vants, so  called  from  being  intra  mcenia  ;  or  rather  to  domestic 
servants,  extending  the  definition  to  all  such  as  are  employed 
in  and  about  a  family  in  carrying  on  the  household  concerns, 
whether  their  occupations  be  within  or  without  doors,  so  long 
as  they  constitute  part  of  the  family.  In  this  restricted  sense, 
the  law  of  master  and  servant  is  manifestly  of  little  importance 
to-day.  But  as  the  reader  may  have  perceived  on  perusal  of 
the  topic  of  guardian  and  ward,  legal  precision  must  sometimes 
be  sacrificed  to  legal  usage ;  and  as  terms  have  been  carried  in 
both  instances  beyond  their  original  signification,  for  the  sake 
of  analogy,  we  are  bound  to  follow  a  certain  distance,  even 
though  it  be  into  logical  confusion. 

How  much  the  law  of  master  and  servant  is  understood  to 
mean  may  be  gathered  from  the  books.  Blackstone  compre- 
hends under  this  head  slaves,  menial  servants,  apprentices, 
hired  laborers,  and  servants  pro  tempore,  such  as  stewards,  fac- 
tors, and  bailiffs  ;  and  he  thereupon  proceeds  to  discuss  principles 
applicable  to  all  such  classes  alike.1  Reeve  carries  the  discus- 
sion still  further,  as  to  factors,  brokers,  attorneys,  and  agents 
generally.2  Kent,  writing  for  later  readers,  with  a  clearer  ap- 
1  >.  *?1,  Com.  ch.  14.  2  Reeve,  Dom.  Rel.  339  et  seq- 

743 


§  455  THE   DOMESTIC   E.ELATIONS.  [PART   VI. 

preciation  of  his  limits,  classifies  into  slaves,  hired  servants, 
and  apprentices,  and  confines  his  discussion  more  carefully  to 
what  might  subserve  the  wants  of  the  domestic  law  ;  yet  not 
with  exactness.1  None  of  these  writers  erred  in  their  general 
views ;  the  principles  of  the  law  had  already  spread  out  with 
the  growth  of  society  in  such  a  manner  that  they  were  obliged 
to  follow  the  authorities.  For  the  same  reason  the  present 
writer,  keeping  in  view  the  natural  boundaries  of  his  subject, 
wTill  nevertheless  take  a  somewhat  comprehensive  and  desultory 
range  ;  thereby  meeting  better  the  practical  wants  of  the  lawyer, 
and  satisfying  a  reasonable  expectation. 

§  455.  Rule  of  Classification  as  to  Master  and  Servant.  — 
Slavery,  for  obvious  reasons,  need  no  longer  be  treated  as  a 
branch  of  our  law  of  master  and  servant.  We  come  first,  then, 
to  hired  servants,  or  servants  proper;  and  as  to  these  the  con- 
tract between  them  and  their  masters  arises  upon  the  hiring ; 
the  servant  being  bound  to  render  the  service,  and  the  master 
to  pay  the  stipulated  consideration.2  The  next  class  is  that  of 
apprentices:  fairly  distinguishable,  as  comprising  such,  usually 
minors,  as  are  bound  out  under  public  statutes,  and  over  whom, 
by  reason  of  their  tender  years,  and  in  accordance  with  the 
spirit  of  such  statutes,  the  master  stands  somewhat  in  the  stead 
of  a  parent.  Yet  apprentices  might  be  bound  out  merely  to 
learn  a  trade,  and  as  part  of  the  education  furnished  by  their 
judicious  parents ;  and  Blackstone  mentions  that  very  large 
sums  were  sometimes  given  with  them  for  their  instruction  at 
his  day.3  Thirdly,  persons  commonly  known  in  popular  speech 
as  workmen  or  employees,  who  are  brought  within  the  princi- 
ples of  one  or  both  of  the  two  preceding  classes,  and  to  whom 
tlic  relation  of  master  and  servant  may  well  be  said  to  apply. 
In  this  class  are  included  day  laborers,  factory  operatives, 
miners,  colliers,  and  numerous  others,  of  whom  nothing  more 
definite  can  1x3  said  than  that  they  are  hired  to  perform  services 
of  a  somewhat  unambitious  character.  If  to  these  be  added  all 
other  occupations  to  which  the  same  rules  are  from  time  to 
time   applied  in  the  courts,  it  is   gratifying  to  reflect  that  the 

1  2  Kent,  Com.  Lee.  32.  »  See  1  Bl.  Com.  426;  2  Kent,  Com 

»  1  BL  Com.  425  ;  2  Kent,  Com.  258.     203,  264. 
744 


CHAP.  I.J  NATURE   OF   THE  RELATION.  §  456 

servant  is  frequently  the  social  equal,  or  even  the  superior,  of 
his  master.  But  let  us  invert  the  order,  disregarding  general 
service  for  the  present.  In  other  words,  let  us  glance  rapidly 
at  the  relation  first  of  workmen  and  next  of  apprentices ;  then 
we  can  consider  the  relation  of  hired  servants  in  its  wider  sense 
more  at  our  leisure. 

§  456.  Relation  of  Master  and  Workman  ;  Courts  of  Concilia- 
tion ;  Trade  Unions,  &c. — First.  The  rights  of  workmen  or 
employees  furnish  a  fruitful  topic  for  legislation.  And  so 
widely  do  the  English  and  American  systems  differ  in  these 
and  kindred  matters,  that  judicial  precedents  may  not  always 
be  safely  interchanged  between  the  two  nations.  Further  is  it 
to  be  remarked  that  apprentices  and  workmen  are  very  generally 
affected  by  the  same  statutes. 

Prior  to  1824,  English  industrial  legislation  leaned  decidedly 
in  favor  of  the  master.  Trade  monopolies,  of  which  Sir  Edward 
Coke  complained  so  justly,  were  indeed  greatly  restricted  in  the 
time  of  James  I. ; l  yet  their  influence  was  felt  down  to  a  much 
later  period;  and  certain  corporations  and  guilds  enjoyed  exclu- 
sive privileges,  which  obstructed  almost  entirely  the  enterprise 
of  individuals.  Attempts  were  made  from  time  to  time  to  bet- 
ter the  condition  of  the  working  classes,  and  to  regulate  the 
payment  of  their  wages;  but  while  fines  and  imprisonment 
were  the  punishment  of  the  employed,  the  employer  suffered 
rarely  for  his  own  misconduct  beyond  rescission  of  the  contract.2 
To  exercise  a  trade  in  any  town  without  having  previously 
served  an  apprenticeship  of  seven  years  was  a  penal  offence.3 
So,  to  entice  or  seduce  artisans  to  settle  abroad  and  communi- 
cate their  knowledge,  to  engage  in  the  export  of  machinery,  all 
this  was  criminal,  and  punished  with  severity,  the  object  pro- 
posed by  such  legislation  being  to  prevent  the  destruction  of 
home  manufactures.4  An  important  act,  passed  in  May,  1823, 
was  calculated  to  ameliorate  the  condition  of  workmen,  by  en- 
larging the  powers  of  magistrates  on  behalf  of  apprentices ;  yet 
English  petty  magistrates  were  always  inclined  to  obsequious- 

13  Inst.  181.  See  4  Bl.  Com.  III.  c.  25  ;  Macdonald,  Handybook,  70^ 
159.  &c. ;  1  Bl.  Com  42G,  427. 

2  See  Acts  20  Geo.  II.  c.  19  ;  6  Geo.  3  4  BL  Com.  160.  *  lb. 

745 


§  456  THE   DOMESTIC    RELATIONS.  [PART  VI. 

ness,  and  their  tribunals  had  not  the  confidence  of  the  working 
classes,  as  remains  the  fact  to  this  day. 

Public  sentiment  of  latter  years,  however,  has  undergone  a 
great  change,  and  class  legislation  has  fallen  into  comparative 
disrepute.  No  principle  so  beneficial  to  workmen  has  been 
introduced  as  that  of  arbitration.  This  doctrine  of  arbitration 
appears  distinctly  set  out  in  the  Act  5  Geo.  IV.  c.  96,  of  1824, 
a  consolidating  statute  which  gets  rid  of  former  inequalities,  and 
marks  a  later  era  in  English  industrial  legislation.  Yet  the 
arbitration  provisions  of  this  act  are  said  not  to  have  worked 
well  in  practice,  partly,  as  a  writer  suggests,  because  of  the 
requisite  intervention  of  a  justice  of  the  peace,  partly  from  its 
lack  of  simplicity.1  But  a  more  recent  act  establishes  "  equitable 
councils  of  conciliation  "  to  adjust  differences  between  masters 
and  workmen,  upon  a  plan  much  resembling  the  French  courts  of 
Prudliommes?  The  plan  is  that  masters  and  workmen  shall 
each  elect  their  own  delegates  to  a  board  or  council,  which  is 
empowered  to  fix  upon  the  rate  of  wages  between  employer  and 
employed,  and  otherwise  adjust  disputes  peculiarly  appertaining 
to  such  service.3  And  a  still  later  act  sets  forth  the  details  of 
such  agreements  quite  fully,  and  further  provides  for  the  designa- 
tion of  arbitrators  in  case  of  a  disagreement.4 

There  is  comparatively  little  legislation  of  this  sort  to  be  found 
in  our  States.  Trade  is  less  fettered  in  America  than  it  was  in 
England ;  and  disputes  between  master  and  servant  have  been 
generally  adjusted  in  times  past  between  themselves  or  by  the 
ordinary  legal  methods.  The  fluctuation  of  society  in  America, 
the  variety  of  pursuits  always  open  to  active  competitors,  the 

1  Macdonald,   Bandybook,  137,  —  a  to  adopt  the  system  from  its  manifest 

small  and  convenient  compendium  pub-  convenience.      To    introduce    such    a 

lished  in  L868.  court  into  England  is  said  to  have  been 

-  30  &  31  Vict.  c.  105  (1807).  a  favorite  speculation  of  the  late  Lord 

3  This  experiment  had  been  tried  in  Brougham.      See   Macdonald,  Ilandy- 

the  English  manufacturing  districts  for  book,  274. 

some  years  previous  to  the  passage  of         4  35  &  36  Vict.  August  G,  1872.   The 

the  act,  and  with  marked  success.     A  principle  of  arbitration  in  the  matter 

celebrated    strike    at    Nottingham,   in  of  trade  disputes  was  adopted  in  1872 

I860,  Led  to  its  first  practical  applica-  by   master  builders  and   masons  on  a 

tion  ;    and   though  there    was   then   no  strike,  upon   the   recommendation  of  a 

statul intenancing    such    a  court,  committee  of  the  Social  Science  Asso- 

inanii!a>  :  up  r-   e]s<-\\  Ihtc  were  soon  led  ciution. 

746 


CHAP.  I.]  NATURE   OF   THE    RELATION.  §  45G 

opportunities  freely  afforded  for  social  elevation,  together  with 
the  fact  of  a  wider  distribution  of  our  manufacturing  population 
than  in  England,  contribute  to  the  difference.  The  employee  of 
to-day  becomes  the  employer  of  to-morrow.  Yet  humane  laws 
are  frequently  enacted,  and  frequently  called  for.  In  Connecti- 
cut, Pennsylvania,  and  other  States,  children  are  specially  pro- 
tected from  laborious  toil  unsuited  to  their  years,  and  their 
hours  of  work  in  the  mills  are  reduced  to  a  proper  limit.1  Later 
American  statutes  tend  to  limit  the  hours  of  labor  and  extend 
the  periods  of  rest  for  adults  also.  And  young  children  are  to 
be  taught  the  necessary  branches  of  a  common  education,  not- 
withstanding their  employment  in  manual  labor.2 

Trade  associations  are  often  formed  in  both  countries  to  pro- 
tect the  rights  of  workmen  in  certain  mechanical  pursuits.  But 
arbitrary  and  oppressive  conduct  on  the  part  of  such  associations 
is  not  to  be  countenanced.  Thus,  where  a  trade  association  con- 
spires to  break  down  the  business  of  a  master  mechanic,  because 
he  will  not  pay  a  sum  demanded,  by  interfering  with  his  employ- 
ment of  workmen,  he  may  sue  them  for  damages.3  At  common 
law  an  indictment  lies  for  conspiring  to  coerce  workmen  by 
violence  or  intimidation  to  leave  their  employer.4 


1  See  2  Kent,  Com.  12th  eel.  266,  4  So  in  Vermont.  State  v.  Stewart, 
and  notes  referring  to  statutes  of  Penn-  59  Vt.  273.  Associations  attempting 
sylvania,  Maine,  New  Hampshire,  Con-  to  coerce  workmen,  to  threaten  em- 
necticut,  and  New  Jersey.  Since  the  plovers,  to  boycott,  &c,  render  them- 
text  was  written,  there  has  been  an  in-  selves  liable  to  suit.  Old  Dominion 
creasing  tendency  in  the  United  States  Co.  v.  McKeuua,  30  Fed.  R.  48.  In 
to  strikes  and  legal  controversies  be-  various  States  may  be  found,  on 
tween  master  and  workman,  the  latter  the  other  hand,  legislation  which  makes 
class  organizing  on  a  larger  scale  than  it  a  misdemeanor  for  corporations  to 
formerly  for  their  professed  interests.  "  blacklist  "  their  discharged  employees, 

2  There  are  similar  acts  in  England  so  as  to  deter  them  from  getting  era- 
lately  passed.  See  Factory  Acts,  7  ployment  elsewhere.  Am.  Dig.  1S92, 
Vict.  c.  15;  10  Vict.  c.  29;  16  &  17  3294.  Legislators  sometimes  transcend 
Vict.  c.  104;  24  &  25  Vict.  c.  117  ;  30  the  State  constitution  in  their  zeal  on  be- 
&  31  Vict.  c.  103.  half   of   the   workman.    Thus,   an   act 

3  Carew  v.  Rutherford,  100  Mass.  1  ;  regulating  weaving  contracts  so  that 
Walker  v.  Cronin,  107  Mass.  555.  The  the  employer  shall  impose  no  fine  or  de- 
members  of  such  an  association  who  duction  for  imperfect  work  is  held  to 
uphold  a  strike  may,  in  a  strong  case  of  deprive  employers  of  the  "  inalienable 
oppression,  be  indicted  for  a  conspiracy,  rights "  of  property,  and  of  making 
Commonwealth  v.  Curren,  3  Pittsb,  143.  reasonable  contracts.  Commonwealth 
And  see  post,  c.  4.  v.  Perry,  155  Mass.  117. 

747 


§  457  THE   DOMESTIC   RELATIONS.  [PART  VI. 

§  457.  Relation  of  Master  and  Apprentice.  —  Second.  The 
relation  of  apprentice  was,  in  its  original  spirit  and  policy,  as 
Kent  has  observed,  calculated  to  give  the  apprentice  a  thorough 
trade  education,  and  to  advance  the  mechanic  arts.1  To  some 
extent,  it  has  that  significance  still.  The  English  apprentice 
system,  beyond  what  has  just  been  noticed  of  working-men 
generally,  has,  however,  referred  more  especially  to  the  poor  or 
parish  apprentices,  who,  under  a  late  act,  may  be  bound  out  to 
the  sea  service  as  well  as  a  trade.2  In  many  American  States 
there  appear  to  exist  no  provisions  for  binding  out  others  than 
poor  children  and  orphans.  Again,  in  other  States,  as  New 
York,  Massachusetts,  and  Pennsylvania,  the  provisions  are  more 
general.3  The  principle  of  such  statutes  is  to  permit  those 
having  custody  to  assign  to  strangers  a  certain  authority  over 
their  children,  until  the  latter  reach  majority ;  and  town  author- 
ities, or  overseers  of  the  poor,  may,  in  many  instances,  supply 
thus  the  want  of  natural  protectors  and  keep  the  young  from 
vicious  surroundings.  But,  inasmuch  as  the  infant's  own  assent 
is  now  made  essential  to  such  instruments,  so  far  as  binding  him 
beyond  the  age  of  discretion  is  concerned  ;  inasmuch  as  courts  do 
not  hesitate  to  disregard  them,  if  at  all  inequitable,  or  even  perhaps 
if  drawn  up  not  in  strict  conformity  to  statute ;  while,  accord- 
ing to  our  policy,  the  child's  freedom  to  dispose  of  his  own  time 
in  general  when  left  to  earn  his  living,  is  very  favorably  re- 
garded, —  it  must  be  said  that  apprenticeship  by  indenture  is  now 
thought  less  desirable  than  it  was  formerly.  Public  authorities 
may  resort  to  it  with  advantage  for  securing  good  homes  to  the 
homeless ;  parents  not  equally  so  ;  the  poor,  however,  may  often 
thus  secure  a  trade  education  for  their  children  without  cost  to 
themselves.     There   can   certainly  be   nothing   unreasonable  in 

1   2  Kent,  Com.  266.  v.  State,  48  Ala.  323;  Spears  v.  Snell, 

-   HI.    Com.    426,    notes    by    Chitty  74   N.  C.    210.      Incorporated    institu- 

aii'l     others.        As    to    the    Mississippi  lions,  like  a  juvenile  asylum,  it  is  held, 

rule    where    a    chancery    court    binds  may  thus  be  authorized  by  a  legisla- 

out,  Bee   Howry  v.  Callowey,  48    Miss.  ture.     People   v.  Juvenile    Asylum,    2 

587.  Thomp,  &  C.  475.     Overseers   of  poor, 

:1  Sec 'j  Kent,  Com.  262,  passim,  12th  commissioners  <>f   charities,  &c,   have 

ed.,    and    n.    Jurisdiction    for   binding  authority  in    some    States.     People  v. 

out  in  this  country  is  given  in  many  Weissenbach,  60  N.  Y.  385  j  Glidden  v. 

States  to  the  judge  of  probate.    Owen  Onity,  10  Fost.  104. 

748 


CHAP.  I.J  NATURE  OF  THE  RELATION. 


§457 


permitting  one  of  suitable  discretion  to  make  any  fair  contract 
of  service,  whether  verbal  or  in  writing,  and  the  advantages  may 
often  constitute  an  adequate  compensation  for  his  labor.  If  he 
be  very  discreet  he  will  not,  however,  make  a  contract  to  last 
without  possible  modification  for  any  great  length  of  time.1 


1  There  are  many  English  and  Amer- 
ican decisions  as  to  the  mutual  rights 
and  duties  of  master  and  apprentice, 
most  of  which  are  of  local  or  limited 
application.  The  English  cases  will 
be  found  in  Macdonald,  Handybook, 
76,  216.  Prospective  damages  cannot 
be  recovered  by  the  master  where  the 
apprentice  unlawfully  quits  the  service. 
Lewis  v.  Peachey,  I  H.  &  C.  518.  To 
make  the  master  liable  on  his  cove- 
nant to  teach  a  trade,  it  must  appear 
*  that  the  apprentice  was  ready  and  will- 
ing to  be  taught.  Raymond  v.  Minton, 
L.  R.  1  Ex.  244.  Such  indentures  are 
strictly  construed,  and  must  be  exe- 
cuted according  to  statute.  St.  Nich- 
olas v.  St.  Botolph,  12  C.  B.  n.  s.  645. 
Questions  relating  to  the  conviction  of 
apprentices  or  workmen  for  misconduct 
constantly  arise  under  the  English  stat- 
utes ;  also  as  to  the  parish  settlement 
of  pauper  apprentices.  Macdonald, 
76;  lb.  218.  See  Boast  v.  Firth,  L.  R. 
4  C.  P.  1,  as  to  actions  for  breach  of 
indenture  of  apprenticeship.  It  is 
doubtful  whether  courts  of  equity  in 
England  would  cancel  indentures  of 
apprenticeship  except  for  fraud.  Webb 
v.  England,  29  Beav.  44.  The  master 
has  his  remedies  against  third  persons 
for  enticement,  on  the  principles  usu- 
ally applicable  to  servants.  Cox  v. 
Muncey,  6  C.  B.  N.  s.  375.  And  see 
Royce  v.  Charlton,  8  Q.  B.  D.  1.  There 
may  be  an  apprenticeship  to  a  corpora- 
tion, [1891]  1  Q.  B.  75. 

In  this  country  it  would  appear  to 
be  the  rule  that  contracts  of  appren- 
ticeship, not  written,  signed,  sealed,  or 
otherwise  executed  in  strict  accord- 
ance with  statute,  are  invalid  ;  or, 
rather,  are  voidable  by  the  parties  con- 
cerned. Malthy  <>.  Harwood,  12  Barb. 
473  ;  Bolton  v.  Miller,  6  Iud.  262  ;  Bal- 


lenger  v.  McLain,  54  Ga.  159;  Phelps 
v.  Pittsburgh  R.  99  l'enn.  St.  108.  But 
see  Brewer  v.  Harris,  5  Gratt.  285.  And 
to  the  validity  of  the  indentures  the 
judge's  assent  may  be  necessary.  Hun- 
sucker  v.  Elmore,  54  Ind.  209.  Yet 
the  relation  of  master  and  servant  may 
be  inferred,  notwithstanding,  from  the 
acts  and  conduct  of  the  parties.  Malt- 
by  v.  Harwood,  supra ;  Page  v.  Marsh, 
36  N.  H.  305.  A  contract  which  in 
effect  was  a  contract  of  apprentice- 
ship, though  not  sealed  as  the  statute 
prescribed,  was  lately  held  valid  as  be- 
tween the  infant's  father  and  the  per- 
son hiiing  the  infant's  services,  so  that 
a  release  of  the  right  of  the  service  by 
the  master  afforded  a  good  considera- 
tion for  a  note  from  the  father.  Crom- 
bie  v.  McGrath,  139  Mass.  550.  In 
many  instances  the  courts  exercise  a 
supervisory  influence ;  and  they  will 
insist  upon  the  provisions  being  rea- 
sonable ;  in  some  cases,  requiring  the 
insertion  of  fair  covenants  on  the  mas- 
ter's part,  such  as  instruction  of  the 
apprentice  in  some  particular  trade ; 
and  they  will  even  cancel  indentures 
which  are  unsuitable  in  terms  or  were 
fraudulently  procured.  Owens  v.  Chap- 
lain, 3  Jones,  323  ;  Finch  v.  Gore,  2 
Swan,  326;  Bakers  v.  Winfrey,  15  B. 
Monr.  499  ;  Lammoth  v.  Maulsby,  8 
Md.  5  ;  Bell  v.  Herrington,  3  Jones, 
320;  Hatcher  v.  Cutts,  42  Ga.  616; 
Mitchell  v.  McElvin,  45  Ga.  458.  Both 
in  this  country  and  in  England,  the 
apprentice  on  reaching  full  age  may 
abandon  the  contract ;  though  the  rule 
of  avoidance  is  not  expressed  with 
uniformity.  Drew  v.  Peckwell,  1  E.  D. 
Smith,  408 ;  Walker  v.  Chambers,  5 
Harring.  311  ;  Forsyth  v.  Hastings,  27 
Vt.  646 ;  Wray  v.  West,  15  L.  T.  n.  s. 
180,  Q.  B.     It  is  held  that  overseers  of 

749 


458 


THE   DOMESTIC   RELATIONS. 


[PART  VI. 


§  458.   Strict  Relation  of    Master   and    Servant  ;     Contract   of 
Hiring.  —  Third.     To  come,  then,  to  the  strictly  legal  relation  of 


the  poor,  in  binding  out  paupers  as  ap- 
prentices, act  as  public  officers  and  not 
as  the  agents  of  their  towns.  Glidden 
v.  Unity,  10  Fost.  104.  And  see  Bard- 
well  v.  Purrington,  107  Mass.  419.  The 
government,  by  accepting  the  appren- 
tice into  military  service,  confers  upon 
him  the  right  to  his  own  pay  and 
bounty.  As  to  agricultural  contracts 
on  southern  plantations,  see  18  S.  C. 
510;  Johnson  v.  Dodd,  56  N.  Y.  76. 
The  master's  right  of  custody  as 
against  an  unwilling  apprentice,  who 
wishes  to  return  to  his  parents,  appears 
in  this  country  to  be  quite  doubtful, 
though  the  indentures  be  well  drawn ; 
the  wishes  of  the  child  being  appar- 
ently regarded  as  paramount.  People 
v.  Pillow,  1  Sandf.  Sup.  672.  In  sev- 
eral instances,  where  imperfect  inden- 
tures had  been  terminated,  the  master 
was  held  not  liable  for  the  apprentice's 
services  on  a  quantum  meruit,  their  origi- 
nal engagement  contemplating  nothing 
of  the  kind.  Maltby  v.  Harwood,  12 
Barb.  473;  Page  v.  Marsh,  36  N.  H. 
305  ;  Hudson  v.  Worden,  39  Vt.  382. 
The  assignment  of  apprenticeship  is 
in  some  States  pronounced  void,  the 
trust  being  personal ;  and  in  general 
it  is  voidable  by  the  infant  himself. 
Tucker  v.  Magee,  18  Ala.  99  ;  Huffman 
v.  Rout,  2  Met.  (Ky.)  50 ;  Allison  v.  Nor- 
wood, Busbee,  414;  Commonwealth  v. 
Van  Lear,  1  S.  &  R.  248;  Phelps  v. 
Culver,  G  Vt.  430.  Yet  the  infant's 
repewed  assent  may  give  force  to  it. 
Bee  Williams  v.  Finch,  2  Barb.  208; 
rson  v.  Howard,  19  Johns.  113. 
Id  Bom<  States,  and  perhaps  in  all,  in- 
fancy is  a  good  plea  to  action  of  cove- 
nant on  such  iudentures.  McNight  v. 
1 1 •  •  lt _r ,  i  Const.  117.  See  Brock  v.  Par- 
ker, 5  [nd.  538.  As  to  the  construction 
and  ni't  hod  of  execution  of  such  inden- 
tures, iee  also  Whitmore  v.  Whitcomb, 
48  Me.  458;  McPeck  v.  Moore,  51  Vt. 
269;  Van  Dorn  >■.  Young,  18  Barb. 
286;    Glidden  i\  Unity,  10  Fost.  104; 

750 


"Wright  ?>.  Brown,  5  Md.  37.  A  child 
held  under  invalid  indentures  of  ap- 
prenticeship may  be  discharged  upon 
habeas  corpus.  Cannon  v.  Stuart,  3 
Houst.  223 ;  Commonwealth  v.  Atkin- 
son, 8  Phil.  375.  For  enticement  of 
an  apprentice,  or  other  injury  interfer- 
ing with  the  service,  the  master  has 
the  usual  remedies  against  third  per- 
sons ;  and  sometimes  the  party  enticing 
may  be  indicted.  Holliday  v.  Gamble, 
18  111.  35  ;  Bardwell  v.  Purrington,  107 
Mass.  419  ;  Ames  v.  Union  R.,  117 
Mass.  541  ;  Doane  v.  Covel,  56  Me. 
527 ;  Hooks  v.  Perkins,  Busbee,  21  ; 
Smith  u.  Goodman,  75  Ga.  198.  Though 
this  seems  to  be  because  of  the  relation 
of  servant  rather  than  apprentice.  See 
c.  4,  infra.  Statutes  regulate  this  sub- 
ject in  various  States.  77  Ala.  84.  And 
remedies  for  enticement  do  not  extend 
to  harboring  an  apprentice  against  ill 
treatment.  Am.  Dig.  1891,278  (statute). 
Where  the  master  permanently  injures 
the  apprentice  by  his  harsh  and  op- 
pressive treatment,  the  parent  has  been 
allowed  to  recover  damages.  Larson  v. 
Berguist,  34  Kan  334.  But  a  father  who 
executes  such  indenture  is  bound  to  ex- 
ercise his  paternal  authority  to  aid  in  its 
just  enforcement.  Van  Dorn  v.  Young, 
13  Barb.  286.  A  settlement  between 
master  and  apprentice,  made  soon  after 
the  expiration  of  the  term,  will  be 
viewed  with  great  jealousy.  McGunigal 
v.  Mong,  5  Barr,  269. 

As  a  rule,  except  in  cases  of  pau- 
pers, both  the  English  and  American 
statutes  require  that  the  infant  shall 
execute  the  deed  if  fourteen,  as  well 
as  his  parents,  and  the  policy  of  the 
law  is  against  binding  out  one  of  dis- 
creet years,  unless  he  is  made  a  party 
to  the  instrument.  See  2  Kent,  Com. 
12th  ed.  263,  264,  and  notes;  Stats. 
Vermont,  New  York,  Maine,  &c.  The 
infant's  informal  assent  will  not  bind 
hi  in.  Commonwealth  v.  Moore,  1  Ashm. 
123  ;  Squire  v.  Whipple,  1  Vt.  69.     But 


CHAP.  I.] 


NATURE   OF   THE    RELATION. 


§458 


master  and  servant,  and,  as  we  shall  prefer  to  confine  ourselves  if 
possible,  to  the  domestic  or  household  relation  of  service.  This 
contract  of  service  arises  purely  upon  the  hiring.  If  the  hiring 
be  general,  without  any  particular  time  limited,  the  old  law  con- 
strues it  into  a  year's  hiring.1  But  the  equity  of  this  rule 
extended  only  to  such  employment  as  the  change  of  seasons 
affected  ;  as  where  the  servant  lived  with  his  master  or  worked 
at  agriculture.  By  custom,  moreover,  such  contracts  have  be- 
come determinable  in  the  case  of  domestic  servants,  upon  a 
month's  notice,  or,  what  is  an  equivalent,  payment  of  a  month's 
wages.2  Laborers  are  hired  frequently  by  the  day,  and  to  hire 
by  the  week  is  not  unusual.3  Yet,  as  to  hiring  in  general,  the 
rule  still  is  that  if  master  and  servant  engage  without  mentioning 
the  time  or  the  frequency  of  payment,  it  is  a  general  hiring,  and 
in  point  of  law  a  hiring  for  a  year,4  —  a  rule,  however,  founded 
in  English  rather  than  American  usage.  Custom  modifies  this 
principle,  and  the  date  and  frequency  of  periodical  payments  are 
material  circumstances  in  each  case.      The  principle  of  yearly 


see  Fisher  v.  Lunger,  4  Vroom,  100. 
It  must  be  distinctly  expressed  in  the 
indenture.  Harper  v.  Gilbert,  5  Cush. 
417.  And  where  the  court  binds  out, 
prudence  requires  that  the  infant  should 
be  present.  Mitchell  v.  Mitchell,  67 
N.  C.  307.  The  mother's  conseut,  too, 
as  parent,  where  the  father  is  dead,  or 
incapacitated  from  giving  consent,  is 
favored  in  many  States.  People  v. 
Gates,  43  N.  Y.  40.  And  under  our 
statutes  a  child  may  frequently  be  ap- 
prenticed to  Shakers,  as  well  as  to  any 
other  master.  People  v.  Gates,  43 
N.  Y.  40  ;  Curtis  v.  Curtis,  5  Gray,  535. 
Unreasonable  stipulations  are  not  to  be 
enforced  ;  such,  for  instance,  as  restrain 
marriage  or  relieve  the  master  from 
paying  or  supporting  at  discretion  while 
keeping  the  apprentice  bound.  45  Ch. 
1).  430 ;  §  403.  An  apprentice's  resi- 
dence during  minority  would  appear 
to  be  that  of  his  master.  Maddox  v. 
State,  32  Ind.  111.  A  minor  who  per- 
forins service  under  invalid  articles 
may  recover  therefor.     Kerwin  v.  My- 


ers, 71  Ind.  359.  For  his  master's 
breach  of  indentures  the  apprentice 
may  sue  on  reaching  full  age.  Cann 
v.  Williams,  3  Houst.  78.  As  to  dis- 
missal of  an  apprentice  for  misbe- 
havior, &c.,  under  the  terms  of  the 
contract,  see  Westwick  v.  Theodor,  L. 
R.  10  Q.  B.  D.  24.  If  the  master  finds 
his  apprentice  is  an  habitual  thief,  he 
may  discharge  him  without  refunding 
the  premium  paid.  Learoyd  v.  Brook, 
[1891]  1  Q.  B.  431.  There  are  local 
codes  which  provide  for  inquiry  by 
parents,  guardians,  or  the  municipal 
authorities,  into  the  treatment  of  ap- 
prentices, authorizing  a  complaint,  and 
if  the  master  be  culpable,  the  cancella- 
tion of  the  indenture.  Fenn  v.  Bancroft, 
49  Conn.  216. 

1  Co.  Lit.  42  ;  1  Bl.  Com.  425. 

2  Nowlan  v.  Ablett,  2  Cr.  M.  &  R. 
54  ;  Fawcett  v.  Cash,  5  B.  &  Ad.  904; 
Fewings  v.  Tisdal,  1  Exch.  295. 

3  R.  v.  Pucklechurch,  5  East,  382. 

4  Fawcett  v.  Cash,  5  B.  &  Ad.  904. 
See  Lilley  v.  Elwin,  11  Q.  B.  742. 

751 


§  458  THE   DOMESTIC   RELATIONS.  [PART  VI. 

hiring  is  applicable  to  all  contracts  of  hiring  and  service,  whether 
written  or  unwritten,  whether  express  or  implied,  and  whatever 
the  nature  of  the  service ;  its  modifications  arise  whenever  the 
contract  contains  stipulations  inconsistent  with  its  application, 
or  where,  from  some  well-known  custom  upon  the  subject,  the 
parties  may  be  considered  to  have  contracted  with  sole  reference 
to  such  custom.1  In  this  country,  at  least,  if  a  contract  for  hir- 
ing is  at  so  much  per  month,  it  will  readily  be  presumed  that 
the  hiring  was  by  the  month,  even  if  nothing  was  said  about  the 
term  of  service.2  But  the  periodical  payment  is  not  conclusive 
as  to  the  periodical  hiring  where  the  evidence  shows  an  arrange- 
ment for  a  different  period  ;  there  is  no  such  precise  rule  here  as 
in  the  relation  of  landlord  and  tenant.3  In  this  country,  more- 
over, custom  bears  very  strongly  upon  the  interpretation  of  all 
contracts  of  service.4  There  is  such  a  thing,  we  should  remem- 
ber, as  a  hiring  for  one  year  by  way  of  an  entire  contract,  with 
payments  by  the  month  as  incidental.5  And  there  may  be  a 
contract  of  hiring  for  some  particular  season  of  the  year,  as  at 
one's  summer  or  winter  residence,  although  wages  be  payable 
weekly  or  monthty  with  special  travel  allowance  during  such 
season. 

The  rule  as  to  hiring  for  a  period  does  not  apply  to  cases  where 
there  has  been  a  service,  but  no  contract  of  hiring  and  no  circum- 
stances from  which  a  contract  can  be  inferred ;  but  here  rea- 
sonable recompense  during  the  service  is  recoverable.  And  a 
contract  of  hiring  cannot  be  presumed  at  all  where  the  circum- 
stances tend  to  rebut  altogether  such  a  presumption ;  as  where 
paupers  have  been  taken  to  live  with  their  relatives  out  of 
charity,6  or  where  the  agreement  was  for  illicit  cohabitation 
and  not  for  service7 

1  Smith,  Mast.  &  Serv.  41,  42  ;  Rex  ft  Larkin  v.  Heeksher,51  N.J.  L.  133. 

v.  Worfleld,   5    T.  R.   506:    Baxter   v.  6  Rex    v.    Sow,    1    B.   &   Aid.   178; 

Xnrs<\  1   Car.   &  K.    10;  Hathaway   v.  Smith,  Mast.  &  Serv.  42. 

Bennett,  in  X.  Y.  108.  '  Rex  v.  Northwingfleld,  1  B.  &  Ad. 

-  Beach  v.  Mulliii,  5  Vroom,  343.  912.     Where  either  party  is  at  liberty 

8  Tatterflon  v.  Suffolk  Man.  Co.,  106  to  determine  the  service  at  any  time 

56  j   Prentiss  v.  Ledyard,  28  Wis.  without   notice,  the   hiring  cannot   be 

!31.  considered  a  yearly   contract.     Smith, 

*  Lyon  v.  George,  44  Md.  295.  Mast.  &  Serv."  43,  44,  and  cases  cited; 

Rex  v.  Great  Bowden,  9  B.  &  C.  249, 
752 


CHAP.  I.]  NATURE   OF   THE   RELATION.  §  459 

We  find  at  the  outset,  then,  a  distinction  made  frequently  in 
practice  between  servants,  menial  or  domestic,  and  other  ser- 
vants ;  which  distinction  is  founded  upon  a  custom  of  dissolving 
the  relation,  not  at  the  end  of  a  year,  but  at  any  time  upon 
giving  the  servant  a  month's  wages.  An  English  writer  says 
that  no  general  rule  can  be  laid  down  as  to  who  do  and  who  do 
not  come  within  the  category  of  menial  servants ;  every  case 
must  stand  upon  its  own  circumstances.1  But  in  a  late  case, 
where  the  subject  was  fully  discussed,  the  disposition  manifested 
was  to  extend  the  word  "domestic"  beyond  the  signification 
"  menial;"  and  a  family  huntsman  was  brought  within  the  above 
rule.2  The  reason  is  apparently  that  contracts  for  service  which 
bring  the  parties  into  such  close  proximity  and  frequency  of 
intercourse  that  they  are  valuable  only  when  mutually  agreeable 
and  otherwise  intolerably  annoying,  should  be  readily  terminated 
at  the  option  of  either  party.3  A  governess  engaged  at  a  yearly 
salary,  though  residing  in  the  house,  is,  however,  held  not  to  be 
within  the  class  of  menial  or  domestic  servants;  regard  being 
paid  by  the  court  to  the  dignity  of  her  position.4  But  the  head 
gardener  is,  though  living  not  in  the  master's  house,  but  in  his 
own  cottage  in  the  domain.5 

§  459.    Contract  of  Hiring  affected  by  Statute  of  Frauds.  —  At 

and  cases  cited.     Or  if  the  hiring  he  *  Smith,   Mast    &   Serv.  2d  ed.  52. 

expressly  fur  less  than  a  year  ;  although  There  is  no  such  custom  in  New  Jersey, 

done    purposely   to    avoid    the    conse-  51  N.J.  L.  13.3. 

quences   of  a  yearly   hiring.      Rex    v.  2  Nicoll  v.  Greaves,  17  C.  B.  n.  s.  27. 

Standon  Massey,  10  East,  576;  2  Salk.  The  dictionaries   furnish   little  aid  on 

535;    Rex  v.   Coggeshall,    6    M.    &    S.  this  point. 

264.     Or  if  the  agreement  be  to  do  work  3  Per  Erie,  C.  J.,  ib.     See  further, 

by  the  piece  or  job.    Rexn.  Woodhurst,  Nowlan  v.   Ablett,  2  Cr.  M.  &  R.  54; 

1  B.  &  Aid.  325.     Or  if  certain  portions  Johnson  v.   Blenkensopp,  5  Jur.   807  ; 

of    the    year    are    specially   excepted.  Crocker  v.  Molyueux,  3  Car.  &  P.  470 ; 

Rex  v.  St.  Helen's,  4  B.  &  Ad.  726.    Or  Ex   parte  Walter,  L.   R.   15  Eq.  412  ;  • 

if   the    master    has  not  entire  control,  Stone  v.  Western    Transportation    Co., 

and  the  servant  is  at  liberty,  when  not  38  N.  Y.  240. 

engaged  for   his   master,  to  work  for  4  Todd  v.  Kerrich,  8  Exch.  151  ;  14 

others ;  though  this  rule  is  to  be  cau-  E.  L.  &  Eq.  433. 

tiously  applied.     Rex  v.  Killingholme,  5  Nowlan  v.  Ablett,  2  Cr.  M.  &  R. 

10  B.  &  C.  802.     See  Beg.  v.  Raven-  54.     Where  one  hires  a  man  and  his 

stonedale,  12  Ad.  &  El.  73.     The  same  wife  to  "live  in  his  family  "  and  "  work 

principle  holds  good  where  the  hours  for   him,"  this  is  a  contract  for  their 

of   working    are    limited    by    contract,  personal  services.     Jennings  v.   Lyons, 

Reg.  v.  Preston,  4  Q.  B.  597.  39  Wis.  553. 

48  753 


§  460  THE    DOMESTIC    RELATIONS.  [PART   VI. 

the  common  law,  a  servant  might  be  hired  either  by  deed  or  by 
a  parol  contract,  but  when  hired  or  retained  by  deed  he  could 
only  be  discharged  by  an  equally  formal  instrument ;  when  hired 
by  parol  he  might  be  discharged  by  parol.1  But  since  the  enact- 
ment of  the  statute  of  frauds,  contracts  of  hiring  must  be  fre- 
quently expressed  in  writing,  in  order  to  be  legally  effectual. 
Under  this  statute,  the  contract  of  service  may  be  verbally  made 
and  proved  if  it  is  capable  of  performance  within  a  year  ;  other- 
wise, it  must  be  in  writing.  Hence  a  verbal  agreement  to  hire 
for  a  year,  commencing  at  a  future  clay,  is  insufficient.2  In  short, 
a  contract  for  personal  service  which  is  not  to  go  into  operation 
for  a  year,  or  is  to  continue  in  force  and  hold  the  parties  together 
for  a  longer  period,  must  be  in  writing.3  Yet  it  seems  that  a 
contract  made  on  a  certain  day  to  serve  for  a  year  from  the  fol- 
lowing day  is  not  within  the  statute  of  frauds.4  And  where, 
under  a  contract  for  a  year's  service,  the  employed  party  has 
gone  on  from  year  to  year,  and  at  the  end  of  a  year  is  allowed  to 
go  on  without  objection,  a  presumption  arises  that  both  parties 
have  assented  to  continuing  the  contract  in  force  another  year, 
and  the  statute  does  not  apply.5  But  this  presumption  of  another 
year's  continuance  is  subject  to  oral  or  other  disproof.6 

§  460.  Contract  of  Hiring ;  ■when  in  Restraint  of  Trade  or 
oppressive  as  to  Length  of  Term.  —  Restraint  of  trade  some- 
times enters  as  an  element  into  agreements  between  master  and 
servant.  If  professional  men,  manufacturers,  or  tradesmen  take 
clerks,  apprentices,  or  workmen  into  their  employ,  and  require 
them  to  agree  that  they  will  not  carry  on  a  like  profession, 
manufacture,  or  trade  within  certain  limits,  —  this  for  the  pur- 
pose of  securing  themselves  against  competition,  —  the  contract, 
being  in  restraint  of  trade,  is  illegal  and  void.7      The  general 

1   Smith,  Mast.    &    Serv.  16;    Dalt.  5  Tatterson  v.  Suffolk  Man.  Co.,  106 

Just,  c  58.  Mass  56;  Sims  r.  Superintendents,  58 

-'  Bracegirdle  v.  Heald,  1  15.  &  Aid.  Mich.  503.     See  Norton  v.  Cowell,  65 

722;    Giraud    v.    Richmond,  2    C.  B.  Md. .359. 
835.  6  See  §  464. 

::  Bee  i  Smith,  Lead.  Can.  432,  and         '  Com.  Dig.  "Trade,"D.  3;  Mitchel 

American   notes,  where  this  subject  is  v.  Reynolds,   1   P.  Wins.  181;    s.  c.  1 

thoroughly  examined.  Smith,  Lead.  Cas.  508,  Am.  cd.  notes; 

1  (  awl  horn  r.  ( 'oplrcy,  32  L.  J.  N.  8.  Lange  v.  Work,  2  Ohio,  x.  s.  520  ;  Law- 

C.  P.  I;r'2.  reuce  v.  Kidder,  10  Barb.  641  ;    (iilman 

754 


CHAP.  T.]       NATURE  OF  THE  RELATION.  §  461 

rule  is  that,  iu  order  to  render  such  a  contract  valid  at  law,  the 
restraint  must  be  (1)  partial  only;  (2)  upon  an  adequate,  or,  as 
the  law  now  seems  to  stand,  not  a  mere  colorable  restriction ; 
(3)  reasonable  and  not  oppressive.1  Even  then  equity  would  be 
loath  to  enforce  it  specifically  if  it  were  at  all  hard  or  even  com- 
plex;2   though  in  many  cases  it  will  do  so.3 

To  the  same  general  head  as  contracts  in  restraint  of  trade 
belong  contracts  by  which  the  services  of  individuals  are  secured 
for  a  specified  time,  or  for  life,  to  a  particular  master.  Contracts 
for  life  are  not  illegal  at  common  law ;  but  they  are  very 
strongly  objectionable ;  and  in  this  country  it  is  doubtful 
whether  they  would  ever  be  enforced,  so  contrary  are  they  to 
the  spirit  of  our  institutions.4  Yet  some  writers  commend  such 
contracts ;  and  in  England  agreements  whereby,  in  substance, 
workmen  engaged  to  serve,  for  a  term  of  seven  years,  certain 
persons  or  their  firm,  or  again,  at  a  certain  scale  of  wages  sub- 
ject to  determine  in  the  event  of  sickness  or  incapacity  of  the 
men  or  cessation  of  business  by  the  employer,  were  considered 
valid  and  unobjectionable.6 

But,  in  Massachusetts,  a  contract  made  by  an  adult  with  a 
citizen  of  the  United  States  to  serve  him,  "his  executors  and 
assigns,"  for  five  years,  without  fixing  the  nature  and  extent  of 
the  services,  or  the  place  of  their  performance,  in  consideration  of 
ten  dollars,  and  of  being  fed,  clothed,  and  lodged,  and  at  the  ex- 
piration of  the  contract  being  paid  "  the  customary  freedom  dues," 
is  pronounced  illegal  and  void,  even  if  valid  where  made.6  "  Such 
a  contract,  it  is  scarcely  necessary  to  say,  is  against  the  policy  of 
our  institutions  and  laws,"  was  the  language  of  the  court. 

§  461.  Creating  the  Relation  of  Service;  Quasi  Servants. — 
As    a   general   rule,   every  person   of  full   age,   free   from   all 

v.  D  wight,   13   Gray,  356;    Duffey   v.  upon  an  implied  contract  not  to  disclose 

Shockey,  11  Ind.  71.  a  trade  secret.     [1892]  2  Ch.  518. 

i  1  Smith,  Lead.  Cas.  521.  4  See  Wallis  v.  Day,  2  M.  &  W.  277; 

2  Kemble  v.  Kean,  6  Sim.  335.  1  Smith,  Lead.  Cas.  521. 

3  lb.;  Beuwell  v.  Inns,  24  Beav.  5  Pilkington  v.  Scott,  15  M.  &  W. 
307.  And  see  Smith,  Mast.  &  Serv.  51  657  ;  Hartley  v.  Cummings,  5  C.  B.  247. 
et  seq.;    Mallan  v.   May,   11    M.  &  W.  See  1  Smith,  Lead.  Cas.  521. 

653  ;  Mumford  v.  Gething,  7  C.  B.  n.  s.  6  Parsons    v.   Trask,    7    Gray,   473. 

305.     Equity  has  granted  an  injunction     And  see  Mary  Clark's  Case,  1  Blackf 

(Ind.)  122. 

755 


§  461  THE    DOMESTIC    RELATIONS.  [PART   VL 

other  incompatible  engagements,  may  become  either  a  master 
or  a  servant;  and  the  service  need  not  be  performed  under  a 
clear  formal  contract,  for  the  service  may  be  constituted  de 
facto}  The  usual  law  of  contracts  applies  to  all  who  enter  the 
relation.  Thus  an  offer  to  employ  another  does  not  bind  the  per- 
son making  it  until  he  is  given  to  understand  that  it  is  accepted  ; 
and  there  must  appear,  as  to  adults  at  least,  a  voluntary  coinci- 
dence in  a  common  understanding,  whether  by  writings  or  parol.2 
And  arrangements  for  remunerating  a  servant  by  a  portion  of 
the  profits  may,  under  some  circumstances,  constitute  him  a 
partner  rather  than  a  mere  servant.3  Though  wages  are  generally 
fixed  in  a  contract  of  domestic  hiring,  this  is  not  indispensable ; 
for  if  one  is  hired  without  such  stipulations  the  obligation  is  to 
pay  whatever  is  just  and  reasonable  ;  and  the  caprice  of  neither 
master  nor  servant  can  fix  such  a  standard.4 

The  relation  of  master  and  servant  is  created,  so  far  as  may 
affect  the  rights  of  third  persons,  when  one  suffers  another  to 
proceed  in  a  service  in  which  the  latter  engaged  only  as  a  vol- 
unteer.5 Yet  one  cannot  by  merely  rendering  services  volun- 
tarily, without  request  or  assent,  compel  the  other  to  become  his 
debtor.6  The  relation  is  created,  too,  where  the  servant  is 
employed,  not  by  the  master  directly,  but  by  some  employee  in 
charge  of  a  part  of  the  business  with  authority  to  engage 
assistants.7 

A  municipal  or  other  corporation  may  sustain  the  quasi  rela- 
tion of  master  and  servant  with  those  in  its  employ,  so  as  to  be 
liable  for  the  negligence  of  the  person  employed.8  Such  a  rela- 
tion between  railroad  companies  or  other  corporations  and  those 
in  their  employ  is  constantly  recognized  in  the  courts.  The  two 
terms  "  master  and  servant  "  and  "  principal  and  agent,"  are,  in 
fact,  frequently  interchanged  as  though  identical  in  meaning; 
and,  indeed,  one   is   usually  quite   as   inexact   as   the    other.9 

1  Smith,  Mast.  &  Serv.  1.  7  Rummell  v.  Dilworth,  111  Perm. 

-  McDonald  v.  Boeing, 43  Mich.  394.  St.  34.'?.     See  §  461,  a. 

3  Smith,  Must.  &  Serv.  29.  8  See  Scott  v.  Mayor  of  Manchester. 

«  See  :;;;   172,  473,  post.  37  E.  L.  &  Eq.  495. 

'"  Mill  v.  Morey,  26  Vt.  178.  9  In  Ohio  the  distinguishing  feature 

6  Webb  v.  Cole,  20  N.  II.  490 ;  Alton  of  the  relation  of  service  has  been  said 

v.  Molledy,  'Ji  111.  76.  to  he  that  the  employer  keeps  control 

756 


CHAP.  I.]      NATURE  OF  THE  RELATION. 


§461 


Where  one  is  neither  employed,  paid,  nor  controlled  by  another, 
he  is  not  his  servant  in  the  legal  sense.1  We  have  seen  that 
adult  children  remaining  in  a  family  may  be  de  facto  servants 
so  as  to  lay  the  foundation  of  certain  suits.2  An  orphan  minor, 
too,  may  be  brought  up  in  some  one's  family,  not  on  the  footing 
of  an  actual  member,  but  rather  in  a  menial  capacity,  who  with- 
out any  actual  contract  becomes  entitled  to  repayment  for  his 
reasonable  services,  less  the  board,  clothing,  and  other  neces- 
saries furnished  him.3  Indeed,  the  relation  of  master  and  ser- 
vant may  be  implied  from  circumstances,  in  such  sense  that  one 
may  be  held  liable  for  the  acts  of  another  as  his  servant;   no 


over  the  mode  and  manner  of  work, 
and  this  applies  to  contractor,  agent, 
or  servant ;  independent  contracts,  how- 
ever, not  falling  within  the  rule.  Cin- 
cinnati v.  Stone,  5  Ohio  St  38.  But 
in  Illinois,  contractors  building  a  rail- 
road appear  to  be  treated  as  servants 
of  the  company  in  a  more  extended 
sense.  Chicago,  &c.  R.  R.  Co.  v.  Mc- 
Carthy, 20  111.  385.  There  is  much 
difficulty  in  applying  the  rule  as  to 
railroad  contractors.  See  1  Redf.  Rail- 
ways, 506;  19  Neb.  620;  57  Vt.  252; 
62  Miss.  565 ;  Edmundson  v.  Pitts- 
burgh R.,  Ill  Penu.  St.  316.  In  Con- 
necticut it  is  said  that  the  manner  of 
paying  for  work  constitutes  no  criterion, 
nor  the  existence  of  actual  present  con- 
trol and  supervision  on  the  part  of  the 
employer;  but  that  these  are  both  cir- 
cumstances to  be  weighed  in  each  case. 
Corbin  v.  American  Mills,  27  Conn. 
274. 

1  McGuire  v.  Grant,  1  Dutch.  356. 
See  Water  Co.  v.  Ware,  16  Wall.  566. 
(Due  who  orally  contracts  to  serve  as  a 
farm  laborer  comes  within  the  relation 
of  master  and  servant.  Daniel  v.  Swear- 
engen,  6  Rich.  297.  Where  the  owner 
of  a  building  employs  a  plumber  to  re- 
pair pipes,  or  a  roofer  to  repair  a  roof, 
in  his  own  way,  retaining  himself  no 
direction,  he  is  not  master  in  the  sense 
of  liability  to  third  persons  for  this 
party's  negligence.  Bennett  v.  True- 
body,  66  Cal.  509 ;  Hexamer  v.  Webb, 


101  N.  Y.  377.  Cf.  Linnehan  v.  Rol- 
lins, 137  Mass.  223,  where  an  owner 
was  held  liable  for  a  contractor,  who 
agreed  to  take  down  a  building  care- 
fully under  the  owner's  direction  and 
subject  to  his  approval.  And  see  82 
Mo.  150,  276. 

2  Whether  the  relation  of  master 
and  servant  actually  existed,  is  the 
fundamental  inquiry  in  suits  where  a 
plaintiff  seeks  to  make  one  person 
responsible  for  the  negligence  of  an- 
other ;  the  only  true  basis  of  responsi- 
bility in  such  cases  being  the  existence 
of  the  master  and  servant,  so  that  one 
selects  and  controls  the  persons  em- 
ployed, directs  the  execution  of  the 
work,  and  so  on.  Seepost,  c.  4;  Robin- 
son v.  Webb,  ll  Bush,  464;  Conlin  v. 
Charlestown,  15  Rich.  201  ;  Coomes  v. 
Houghton,  102  Mass.  211  ;  Railroad  v. 
Planning,  15  Wall.  649;  Water  Co.  v. 
Ware,  16  Wall.  566;  1  Redf.  Railw.  3d 
ed.  506-509  ;  Ballou  v.  Farnum,  9  Al- 
len, 27 ;  Meara  v.  Holbrook,  20  ( >hio 
St.  137 ;  Palmer  v.  Portsmouth,  43 
N.  H.  265 ;  Harrison  v.  Collins,  86  Penn. 
St.  153.  See  also,  concerning  employ- 
ment in  a  colliery,  Rourke  v.  Colliery 
Co.,  2  C.  P.  D.  205.  As  to  the  actual 
master  where  a  driver  was  hired,  see 
Quarman  v.  Burnett,  6  M.  &  W.  499 ; 
14  Q.  B.  D.  890;  Joslin  v.  Ice  Co.,  50 
Mich.  516. 

3  Lockwood  v.  Robbins,  125  Ind. 
398. 

757 


§  462  THE   DOMESTIC   RELATIONS.  [PART   VI. 

express  contract  need  be  shown.1  One  may  let  his  awn  servant 
(with  or  without  his  own  personal  property)  to  another  in  such 
a  way  as  to  make  the  hirer  the  responsible  master  pro  hac  vice.2 
But  in  all  such  cases  there  should  appear,  if  not  an  express 
contract  for  remuneration,  meritorious  circumstances  at  all 
events,  such  as  to  raise  a  reasonable  inference  of  an  under- 
standing for  service.3 

§  461  a.  Hiring  by  Husband  or  Wife.  —  A  domestic  servant 
is  presumed  to  be  hired  by  the  husband,  or  head  of  the  house ; 
and  if  the  wife  makes  such  contract,  for  the  common  home,  she 
acts  presumably  as  her  husband's  agent,  being  very  commonly 
his  fit  representative  in  dealing  with  those  employed  of  her  own 
sex  in  particular.  But  under  our  married  women's  acts,  and 
agreeably  to  our  later  policy,  a  wife  may  contract  for  domestic 
service  to  be  paid  out  of  her  own  property.4  And  even  where 
the  local  statute  is  found  insufficient  for  a  married  woman  to 
thus  bind  herself,  she  has  still  a  right  to  a  servant  if  the  servant 
is  found  willing  to  enter  her  employment.5  Even  where  a  mar- 
ried woman  lived  apart  from  her  husband,  the  common  law 
treated  her  domestic  servant  as  the  servant  of  the  husband,  if 
any  legal  liability  as  master  existed  at  all ;  and  this  rule,  aside 
from  enabling  acts,  applies  for  the  protection  of  the  wife  as 
against  third  persons  who  set  up  injuries  through  the  ser- 
vant's agency.6 

§  462.  How  Contract  for  Service  is  terminated  ;  Withdrawal 
or  Resignation ;  Causes  of  Discharge,  &c.  —  We  are  now  to 
inquire  in  what  manner  the  relation  of  master  and  servant  may 
be  terminated.  The  summary  and  harsh  method  which  befits  a 
real  master  is  to  discharge  the  servant.  The  servant  on  his  part 
will  summarily  withdraw  from  the  service,  if  dissatisfied,  or,  by 
striking,  as  it  is  called,  invite  his  prompt  discharge.     The  milder 

1   Growcock    V.    Hall,    82   Ind.    202.  As  to  adult  daughters,  &c.  continuing  to 
Prima  facie  one  found  doing  service  for  live   at  home,   see    §§   269,   270,   274. 
another,  not  closely  related  by  Mood  or  Here  home  services  and  board  are  pre- 
marriage, is  in  his  employ.  17  Mo.  A  pp.  sumably  an  offset. 
212.  *  See  Button  w.  Higgins  (1894),  Col. 

-  De  Vote  v.  Michigan  Lumber  Co.,         »  Allen  v.  Keilly  (1894),  R.  I. 
64  Wis.  616.  6  Ferguson  v.  Neilson,  17  R.  I.  81  ; 

8  Collar  v.  Patterson,   187  111.  403.  §490. 

758 


CHAP.  I.]  NATURE   OF   THE    RELATION.  §  402 

termination  of  the  employment  relation  is  by  a  servant's  resign* 
ing;  and  a  fair  employer  will  often  prefer  to  induce  his  employee, 
if  he  caD,  to  tender  his  resignation  and  then  accept  it,  rather 
than  resort  to  dismissal  and  a  discharge.1  The  causes  which 
justify  peremptory  discharge  by  the  master  are  various,  and  the 
rule  depends  somewhat  upon  the  nature  of  the  particular  em- 
ploymeut  in  question.  But  most  decisions  are  reducible  to 
three  leading  classes :  first,  wilful  disobedience  of  a  lawful 
order ;  second,  gross  moral  misconduct ;  third,  habitual  negli- 
gence or  kindred  fault  in  the  employment.2 

An  instance  of  the  first  class  came  before  Lord  Ellenborough, 
where  a  farmer's  servant  was  ordered  to  go  with  the  horses  a 
mile  off  just  as  dinner  was  ready,  and  he  said  he  would  not  go 
until  he  had  had  his  dinner.3  And  another,  more  recent,  is 
where  a  farm-servant  refused  to  work  during  harvest  without 
beer.4  In  a  carefully-considered  English  case  the  court  went 
even  so  far  as  to  justify  dismissal  of  a  housemaid  who  persisted 
in  leaving  the  house  without  permission,  to  visit  a  sick  and 
dying  mother.5  In  these  cases,  and  especially  the  last,  the 
authority  of  the  master  is  very  strongly  upheld ;  more  so,  per- 
haps, than  American  policy  would  concede.  Where  the  miscon- 
duct is  slight,  and  a  first  offence,  and  the  master  has  not  suffered 
essentially  by  it,6  where  the  reasons  for  disobedience  are  extreme, 
and  where  the  servant's  general  conduct  is  exemplary,  this,  it 
seems,  ought  to  go  strongly  in  his  own  justification;  for  the 
mutuality  of  contracts  is  always  properly  considered.  An 
obstinate  refusal  to  do  an  unlawful  act  is  clearly  no  ground  for 
dismissal.7  But  for  insolent  and  wilful  disobedience  of  orders, 
especially  if  repeated,  a  servant  may  generally  be  dismissed,8 

1  Language,  requesting  to  resign,  6  Absence  for  a  single  day,  not  un- 
was  construed  into  a  civil  form  of  per-  reasonable  nor  involving  serious  con- 
emptory  discharge  where  the  employee  sequences  to  the  master,  held  a  first 
left.  Jones  v.  Graham  Trans.  Co.,  51  disobedience  not  justifying  dismissal. 
Mich.  539.  Shaver  v.  Ingham,  58  Mich.  649. 

2  Smith,  Mast.  &  Serv.  70  ;  2  Kent,  7  See  Jacquot  v.  Bourra,  7  Dowl.  348. 
Com.  259.  8  Beach    v.    Mullin.  5  Vroom,   343. 

8  Spain  v.  Arnott,  2  Stark.  256.  Insubordination  and  disrespectful  con- 

4  Lilley  v.  Ehvin,  11  Q.  B.  742.  duct  towards  one's  employer  is  a  suffi- 

5  Turner  v.  Mason,  14  M.  &  W.  112.  cient  ground  for  his  discharge.  Bailey 
And  see  Smith,  Mast.  &  Serv.  71.  v.  Lauahan,  34  La  Ann.  426. 

759 


§  462  THE    DOMESTIC    RELATIONS.  [PART    VI. 

Instances  of  the  second  class  are  not  uncommon.  Immorality 
is  sufficient  cause  for  dismissal  ;*  even  the  pregnancy  of  a  maid- 
servant, according  to  Lord  Mansfield.2  Embezzlement  is  a  good 
ground,  though  the  sum  embezzled  be  less  than  the  arrears  of 
wages.3  The  same  is  true  of  robbery.4  And  of  indecent  and 
immoral  behavior,  especially  if  exhibited  towards  others  in  the 
master's  employ,  or  otherwise  to  his  immediate  detriment.5 
Habitual  drunkenness  is  doubtless  a  good  ground  if  it  seriously 
interferes  with  the  due  performance  of  the  particular  service 
and  the  master's  interests.6  Acts  and  conduct  which  pointedly 
indicate  fraudulent  misbehavior  toward  the  master  may,  and 
should,  justify  prompt  dismissal.7  Secret  speculations  or  fast 
living,  when  found  out,  may  justify  the  dismissal  of  one  whose 
position  involves  responsibility  for  the  funds  of  others.8  But 
getting  once  into  a  fight  with  another  servant  is  not  a  sufficient 
cause  for  discharge,  regardless  of  the  circumstances  of  the 
quarrel.9 

The  third  class  furnishes  many  examples ;  and  yet  the  rule 
here  is  to  be  laid  down  with  much  caution,  for  a  practical  appli- 
cation is  difficult.  Detriment  to  a  master's  interests  may  occur 
through  the  servant's  fault  outside  of  the  strict  classification 
here  referred  to.  There  are  some  English  cases  where  conduct 
which  might  ordinarily  seem  justifiable  on  a  servant's  part  has 
been  punished  by  dismissal,  the  court  carrying  out  the  then  pre- 
vailing policy  against  teaching  the  secrets  of  trade  to  strangers 
or  foreigners.10  So  have  many  decisions  seemed  to  sustain  the 
master,  where  the  servant  lacked  in  blind  devotion  to  his  selfish 
interests,  or  asserted  a  generous  independence  of  opinion  a  little 


1  Atkin  v.  Acton,  4  Car.  &  P.  208.  7  See  ITorton    v.  McMurtry,  5  Hurl. 

2  Cald.  11;  lb.  57.  &  Nor.  067;  Singer  v.  McCormick,  4 
8  Brown  v.  Croft,  6  Car.  &  V.  If,  v.;  W.  &   S.  266.      Slandering  the  master 

Spotswood  v.  Barrow,  5  Exch.  110.  to  others,  and  spitefully  suing  him  on 

4  Libhart  <•.  Wood,  l    W.  &  S.  205;  groundless  charges,  is  good  cause  for 

Trotman  v.  Dnnn,  I  Camp.  21 1  ;  Smith,  dismissal.     Brink  v.  Fay,  7  Daly,  562. 

Mast.  &  Serv.  72  And   see   McCormick    v.   Demarv,    10 

!>  Weaver  v.  FTalsey,  1  111.  App.  558;  eb.  515. 

Drayton  v.  Reid,  5  Daly,  i 12.  8  Pearce  v.  Foster,  17  Q.  B.  P.  536. 

•  Gonsoli    i    Gearhart,31    Mo.  585.  9  Larkin  v.  Hecksher,  51  X.  J.  L.  133. 

Sec   Lord  I >••!! mriii,  in  Wise  v.  Wilson,  10  Turner   v.  Robinson,  5  B.  &  Ad. 

1  Car.  &  K.  662j   7.'.  Ca.   166.  789. 

760 


CHAP.  I.]       NATURE  OF  THE  RELATION.  §  4G3 

too  boldly.1  But  at  the  present  day,  certainly  in  America,  more 
might  be  claimed  for  the  servant  and  less  for  the  master.  Yet 
the  legal  principle  is  correct  that  for  habitual  negligence  or  un- 
warranted absence,  or  for  any  such  conduct  in  fact  as  prevents 
a  mutual  agreement  from  being  carried  out  to  the  reasonable 
satisfaction  of  the  employer,  the  person  employed  may  be  dis- 
missed ;  nor  would  it  seem  to  mutter  much  whether  it  be  through 
wantonness  or  palpable  inefficiency  amounting  to  a  breach  of 
implied  undertaking.2  A  servant  betraying  his  master's  con- 
fidence may,  it  seems,  be  discharged.3  But  the  relation  contin- 
ues though  the  master  obtains  a  commitment  of  the  servant  to 
prison.4  So,  where  absence  is  warrantable,  or  where  the  absence 
is  temporary  for  no  bad  purpose,  and  the  master  has  suffered  no 
serious  loss  thereby.5  Where  serious  danger,  though  perhaps 
not  actual  damage,  is  occasioned  to  the  master's  business  by  his 
servant's  conduct,  he  is  justified  in  dismissing  the  servant  on 
that  account ;  as  if  an  apothecary's  assistant  should  frequently 
employ  an  ignorant  shop -boy  to  make  up  prescriptions  to  save 
himself  work.6  Herein  the  servant's  negligence  amounts  to  a 
breach  of  his  implied  undertaking. 

Subject  to  what  has  already  been  said  concerning  contracts 
in  restraint  of  trade,  we  may  add  that  a  servant  may  lawfully  be 
discharged  on  the  ground  that  he  is  engaging  in  another  busi- 
ness in  competition  with  and  calculated  seriously  to  injure  that 
of  his  employer.  Here  the  cause  of  discharge  would  be  serious 
detriment  to  the  master's  interests,  if  not  habitual  negligence.7 

§  463.  The  Same  Subject  —  If  good  ground  of  discharge 
exists  and  is  known  to  the  master  at  the  time  of  dismissal,  it  is 
sufficient  to  justify  the  discharge,  although  he  chose  to  allege 

1  See  Lacy  v.  Osbaldiston,  8  Car  &  6  Wise  v.  Wilson.  1  Car.  &  K.  662. 
P.  80  ;  Ridgway  v.  Hungerford  Market  Though  here  the  relation  was  admitted 
Co.,  3  Ad.  &  El.  171  ;  Amor  v.  Fearon,  to  be  not  strictly  that  of  servant  or  ap- 
9  Ad.  &  El.  548.  prentice.     See,  further,  Harover  v.  Cor- 

2  See  Callo  v.  Brouncker,  4  Car.  &  nelius,  5  C.  B.  n.  s.  236  ;  Stanton  v. 
P.  518,  cited   Smith,  Mast    &    Serv.   73;  Bell,  2  Hawks,  145. 

Heber  v.  Flax  Man.  Co.,  13  R.  I.  303.  '•   Adams  Express  Co.  v.  Trego,  35 

3  Beeston  v.  Collyer,  2  Car.  &  P.  Md.  47  ;  supra,  §  460.  It  is  insufficient 
609.  excuse  to  the  servant  that  the  compet- 

4  Rex  v.  Barton,  2  M.  &  S.  329.  ing    business    was    conducted    by  him 
6  Filleul  v.  Armstrong,  7  Ad.  &  El.     without    neglecting    his    master's  con- 

557.  cerns.    Dieringer  p.  Mever,  42  Wis.  311. 

761  ' 


§  464  THE   DOMESTIC   RELATIONS.  [PART   VI. 

some  other  cause.1  But  it  would  seem  that  if  the  master,  at  the 
time  he  discharged  the  servant  did  not  know  of  any  act  of  mis- 
conduct on  the  servant's  part  which  would  justify  dismissal,  the 
mere  existence  of  such  misconduct  would  not  afterwards  avail 
in  his  own  justification.2  In  various  instances  affecting  the  ser- 
vant's conduct  towards  other  servants  or  third  parties  the  mas- 
ter is  bound  to  consider  justly  the  circumstances.3  Discharge 
for  a  certain  cause  should  be  reasonably  soon  after  knowledge  of 
the  cause  in  order  to  avail  the  employer ;  4  and  indeed  the  em- 
ployer's own  responsibility  to  third  parties  requires  this.  But  a 
waiver  of  the  right  to  discharge  a  servant  may  be  presumed 
from  circumstances.5 

It  need  hardly  be  added  that  to  discharge  a  servant  peremp- 
torily from  one's  employ  without  justifiable  cause,  before  the 
term  of  employment  ends  or  is  presumed  to  end,  subjects  the 
master  to  a  suit  in  damages.6  And  the  servant,  though  less  fre- 
quently sued  for  his  breach  of  contract  because  less  apt  to  be 
pecuniarily  responsible,  is  legally  liable  in  damages  for  his  own 
breach  where,  without  good  excuse,  he  leaves  his  service  pre- 
maturely or  fails  to  comply  with  the  terms  of  his  engagement." 

§  464.  Termination  of  Service  by  Mutual  Consent,  &c. ;  Special 
Terms.  —  A  contract  of  service,  like  all  other  contracts,  may  be 
dissolved  by  mutual  consent,  or  by  the  death  of  either  party,  or 
by  the  completion  of  the  term  of  service.8     One  who  miscon- 

1  Smith,  Mast.  &  Serv.  76,  and  cases  stipulated  rate  for  the  time  actually 
cited;  Baillie  v.  Kell,  4  Bing.  N.  C.  spent  in  such  service,  if  he  was  received 
638;  Ridgway  v.  Hungerford  Market  back  into  it,  and  continued  therein  with- 
Co.,  3  Ad.  &  El.  171  ;  Mercer  v.  Wliall,  out  any  new  arrangement  made  or  any 
5  Q.  B.  447.  intimation  that  the  old  one  was  termi- 

2  Cussons  v.  Skinner,  11  M.  &  W.  nated.  Prentiss  v.  Ledyard,  28  Wis.  131. 
161.     But    see    Spotswood  v.   Barrow,  c  See  §  472. 

5  Exch,  IK).  7  See  §§  477,  478. 

»  51   N.  J.  L.  133.  8  See  Thomas  v.  Williams,  1  Ad.  & 

4   Sec  Williams  v.  Jeter,  64  Ga.  737  ;  El.  685.      Contract  held  to  have  heen 

Byrne,  51  Wis,  531.  dissolved  by  mutual  consent  in  Stock- 

6  Thus,  where  a  servant  was  to  re-  ley  v.  Goodwin,  78  111.  127.     Accepting 

ceive    payment   at   a  specified  rate  if  one's  discharge  without  remonstrance 

he  continued  temperate  and  faithful  in  does  not  waive   his  rights.     Dana  v. 

his  employer's  service;,  the  fact  that  he  Short,  81    111.  468.     As  to  the  effect  of 

was  occasionally  intemperate  and  dis-  employing  individually  as  master  and 

continued    service    for   short    periods  then  entering  into  a  partnership,  see 

would  not  prevent    his  recovering  the  75  (ja.  K3 ;  143  Mass.  473. 

762 


CHAP.  I.]  NATURE   OP   THE   RELATION.  §  465 

ducts  himself  and  is  reprimanded  for  it  and  then  leaves  offended, 
has  no  cause  of  action.1  The  parties,  furthermore,  may  make 
special  terms,  as,  for  instance,  in  fixing  a  certain  period  or  in 
requiring  a  certain  previous  notice  to  terminate ;  and  such  terms, 
even  if  more  favorable  to  one  than  the  other,  must  be  mutually 
respected.2  Thus  a  contract  for  a  fixed  period  sometimes  pro- 
vides that  the  employee  may  be  discharged  sooner  if  the  em- 
ployer be  dissatisfied.3  Any  such  one-sided  discretion  must  be 
fairly  exercised,  however;  for  such  an  agreement  does  not  jus- 
tify arbitrary  dismissal  nor  a  severance  of  the  relation  for  differ- 
ent reasons  where  the  proviso  is  made  a  convenient  pretext.4 
Where  in  case  of  a  fixed  term  or  a  presumed  general  hiring  for 
a  year,  the  term  has  expired,  proof  bearing  upon  a  new  arrange- 
ment for  continuance  is  admissible,  to  repel  any  such  presump- 
tion as  silence  raises.6 

§  4G5.  Servant's  Occupation  of  Master's  Premises  ;  No  Ten- 
ancy Presumed.  —  A  servant  who  occupies  premises  belonging 
to  his  master  is  not  presumed  to  occupy  as  tenant,  but  by  vir- 
tue of  the  relation  of  service ;  and,  if  such  be  the  case,  he 
acquires  no  estate  therein  by  the  performance  of  his  duties,  even 
though  he  be  also  allowed  to  use  the  premises  for  carrying  on 
an  independent  business  of  his  own.6  If  properly  dismissed 
from  the  service,  therefore,  he  has  no  right  to  remain  until 
ejected  upon  notice  as  a  tenant ;  but  the  termination  of  his 
service  is  likewise  the  termination  of  his  right  to  the  premises. 


1  Physioc  v.  Shea,  75  Ga.  466.  One     who    contracts  to  labor  for  a 

2  Creen  v.  Wright,  1  C.  P.  D.  591  ;  limited  period  cannot  be  compelled  to 
Walsh  v.  W  alley,  L.  R.  9  Q.  B.  367  ;  stay  longer  against  his  consent  in  order 
Preston  v.  American  Linen  Co.,  119  to  make  up  for  lost  time,  or  for  his  em 
Mass  400;  Naylor  v.  Fall  River  Co.,  plover's  personal  convenience.  Bast  v. 
118  Mass.  .317.  A  servant  claiming  Byrne,  51  Wis.  531  ;  Wyngert  v.  Nor- 
the  benefit  of  such  previous  notice  can  ton,  4  Mich.  286.     • 

set  up  no  implied  immunity  from  dis-  8  Hotchkiss  v.  Gretna  Co.,   36    La. 

charge  without  notice  for  misconduct.  Ann.  517. 

Basse  v.  Allen,  43  Tex.  481.     Nor  does  4  lb.     Winship  v.  Base  Ball  Asso- 

one  abandon  the  service  lawfully  where  ciation,  78  Me.  571. 

his  drunkenness   or  other  misbehavior  5  §459;    Hale    v.    Sheehan    (1894), 

provoked    his    master's     just     resent-  Neb. 

meut.      Morgan    v.    Shelton,    28    La.  6  White    v.   Bay  ley,  10  C.  B.  n.  s 

Ann.  822.  227  ;  Smith,  Mast.'&  Serv.  40,  41. 

763 


§  467  THE   DOMESTIC    RELATIONS.  [PART    VL 


CHAPTEE  It 

MUTUAL   OBLIGATIONS   OF    MASTER   AND    SERVANT. 

§  4G6.  Obligations  to  be  considered  as  to  Master  ;  as  to  Servant. 

■ —  Some  obligations  arising  from  the  relation  of  service  rest  more 
especially  upon  the  master ;  others  again  more  especially  upon 
the  servant. 

§  4G7.  Master's  Obligation  as  to  Education,  Discipline,  &c.  — 
First,  as  to  the  master.  A  moral  obligation  resting  upon  every 
master  whose  connection  with  his  servant  is  a  very  close  one, 
the  latter  being  manifestly  on  an  inferior  footing,  is  to  exert  a 
good  influence,  to  regard  the  servant's  mental  and  spiritual  well- 
being.  Positive  law  enjoins  the  same  duty  in  a  variety  of  in- 
stances with  regard  to  apprentices  and  workmen  under  age,  by 
requiring  their  masters  to  teach  them  to  read,  write,  and  cipher, 
to  see  that  they  attend  public  worship,  and  in  general,  to  take 
due  care  of  their  morals.1 

From  such  view  of  a  master's  obligation  comes,  doubtless,  a 
rule  which  some  deduce  from  the  old  books,  that  a  master  has 
the  common-law  right  to  chastise  his  servant  or  apprentice  mod- 
erately ;  but,  on  principle,  the  limitation  must  be  to  those  ser- 
vants or  apprentices  under  age,  who,  by  positive  law,  are  com- 
mitted somewhat  as  children  to  their  master's  keeping.2  The 
right  is  denied  as  to  ordinary  servants  in  this  country.3  "  The 
only  civil  remedies,"  says  an  English  writer,  "a  master  has  for 
idleness,  disobedience,  or  other  dereliction  of  duty,  or  breach  of 
contract  on  the  part  of  a  servant,  are  either  to  bring  an  action 
against  him,  or,  as  Puffendorf  expresses  it,  'to  expel  the  lazy 

I  See  State.  N.  Y.,  Conn.,  &c,  in  2  vant  (N)  ;  1  Bl.  Com.  428;  2  Kent, 
Kent,  Com.  262,  and  n.  Com.  2f>0. 

-  See  Bac   Abr.  tit.  Master  and  Ser-         3  Commonwealth  v.  Baird,  1  Ashm. 

267  ;  Cooper  v.  State,  8  Baxt.  324. 

764 


CHAP.  II.]  MUTUAL   OBLIGATIONS.  §  469 

drone  from  his  family,  and  leave  him  to  his  own  beggarly 
condition.'  "  1 

§  408.  Master's  Obligation  as  to  furnishing  Necessaries.  —  As 
to  necessaries,  Kent  pronounces  the  better  opinion  to  be  that  the 
master  is  not  bound  to  provide  even  a  menial  servant  with  medi- 
cal attendance  and  medicines  during  sickness.2  And  so  far  as 
special  medical  attendance  furnished  an  adult  servant  capable  of 
taking  care  of  himself  is  concerned,  the  rule  is  so  settled  : 3  though 
Lord  Kenyon,  and  perhaps  Lord  Eldon,  once  thought  otherwise.4 
Yet  a  master  is  legally  bound  to  provide  medicines  for  his  ap- 
prentice.5 One's  conduct  to  the  helpless  and  suffering  should 
not  be  inhuman.  And  reference  to  the  authorities  will  show 
that,  as  to  domestic  servants  courts  are  not  indisposed  to  infer 
authority  from  the  master's  own  conduct.6  The  duty  of  a  mas- 
ter to  provide  food  and  other  necessaries  rests  upon  contract, 
express  or  implied  ;  and  it  was  the  English  doctrine,  as  expressed 
in  1802,  that  neglect  to  furnish  sufficient  food,  clothing,  or  lod»r- 
ing  to  any  infant  of  tender  years  unable  to  provide  for  and  take 
care  of  himself,  whether  child,  apprentice,  or  servant,  so  as  thereby 
to  injure  his  health,  was  an  indictable  offence ;  which  principle 
a  later  English  statute  has  extended  even  further,  wherever  there 
is  the  legal  liability  to  provide  necessaries.7  It  may  be  pre- 
sumed that,  in  most  cases,  the  reasonable  value  of  necessaries 
furnished  a  servant,  where  the  master  was  not  legally  bound  to 
supply  them,  might  be  set  off  against  the  servant's  wages.  But 
board  and  wages  are  the  usual  incidents  of  menial  service. 

§  469.  Master's  Obligation  as  to  finding  Work.  —  How  far  the 
master  is  bound  to  find  work  for  his  servant  has  sometimes  been 
considered  in  the  courts.     The  legal  principle  is  that  of  substan- 

i  Smith,  Mast.   &    Serv.    69;    Puff.  4  Scarman  v.   Castell,    1    Esp.  270; 

Law  Nature,  b.  6,  ch.  3,  §  4.     A  master  Simmons  v.  Wilmott,  3  Esp.  93. 
has  no  right  to  use  "  moderate  force  "  5  Keg.  v.  Smith,  8  Car.  &  P.- 153. 

to  compel  a  female  servant  of  eighteen  6  Cooper    v.   Phillips,  4    Car.  &   P. 

to     obey     his    reasonable     commands.  581  ;  Sellen  v.  Norman,  4  Car.  &  P.  80  ; 

Tinkle  v.  Dunivaut,  16  Lea,  503.  Friend's  Case,  Russ.  &  Ry.  C.  C.  22. 

2  2  Kent,  Com.  261.  7  14  &  15  Vict.  c.  11.  *As  to  indict- 

3  Smith,    Mast.    &   Serv.    118-120;  ing  the  husband  rather  than  the  wife, 
Wennall  v.  Aduey,    3    B.    &    P.    247  ;  see  Rex  v.  Saunders,  7  Car.  &  P.  277   ' 
Sweetwater  Co.  v.  Glover,  29  Ga.  399;  See  Smith,  Mast.  &  Serv.  117. 

Clark  v.  Waterman,  7  Vt.  76. 

765 


§  471  THE  DOMESTIC   RELATIONS.  [PART  VI. 

tial  justice.  A  master  may  hire  a  servant  for  a  certain  period, 
and,  paying  the  wages  or  salary  agreed  upon,  may  keep  him  in 
sufficient  work  or  not;  but  he  cannot  deprive  the  servant  of  his 
full  compensation  through  a  discontinuance  of  his  own  business, 
or  from  other  like  cause.1  But  where  the  contract  of  hiring 
merely  contains  an  undertaking  to  pay  certain  stipulated  wages 
in  proportion  to  the  work  done,  there  is  no  implied  obligation  on 
the  master's  part  to  find  work ;  though  the  disposition  is  to  con- 
strue contracts  of  doubtful  significance  into  an  agreement  on  the 
master's  part  to  enable  the  servant  to  earn  regular  and  reason- 
able wages.2 

§  470.  Master's  Obligation  to  indemnify  Servant.  —  It  is  the 
duty  of  every  master  to  indemnify  his  servant  from  the  conse- 
quences of  lawful  acts,  done  in  pursuance  of  orders  which  the 
servant  was  bound  to  obey.  And  as  to  an  act  not  malum  in  se, 
but  which  might  have  been  either  lawful  or  unlawful,  and  which 
the  servant  was  induced  by  the  conduct  of  his  master  to  believe 
to  be  lawful,  the  rule  of  indemnity  likewise  applies.3  But  it 
would  appear  that  for  an  act  malum  in  se,  or  which  the  servant 
knew  to  be  unlawful,  although  done  by  him  in  obedience  to  his 
master's  orders,  the  master  is  not  bound  to  indemnify  his  servant ; 
for  the  servant  should  have  refused  obedience.4  The  master's 
positive  liability  in  such  a  case  is  rather  to  the  aggrieved  third 
person  as  an  instigator  of  the  wrong.5 

§  471.  Masters  Obligation  to  receive  into  Service  the  Person 
Engaged  ;  Remedies  for  Breach.  —  It  is  likewise  the  duty  of  the 
master  to  receive  into  his  service  a  person  already  engaged ;  and 
if  he  fails  to  do  so,  lie  is  liable  in  damages.  And  yet  here  a 
legally  binding  contract  would  have  to  be  shown  by  the  plaintiff.6 
Nor  will  courts  of  chancery  grant  injunction  to  compel  specific 
performance,  except  perhaps  in  cases  where  the  relation  exists 

1   Aspdin   v.  Austin,  5    Q.  B.    G71  ;  Bawlings    v.  Bell,  1    C.  B.  951;    Cro. 

Elderton    v.    Emmens,    6    C.  B.    100;  .lac.  468  ;  Story,  Agency,  §  339  ;  Smith, 

Smith,  Mast.  &  Serv.  49,  50.  Mast.  &  Serv.  121. 

•'  See   Pilkington  v.  Scott,  15  M.  &         4  Smith,  ib.    See  post,  c.  8,  as  to  ser- 

W.  657  :  Hartley  v.  Cummings,  5  C.  B.  rant's  own  liability  in  this  respect. 
247;    Smith,    Mast.    &    Serv.   48,    50;         B  §§  490, 491. 
Sykes  r.  Dixon,  9  Ad.  i:   I.I  698.  6  Bracegirdle  v.  Heald,  1  B.  &  Aid. 

Collins   v.    Evans,   5   Q.   B.  830;  722;  Blogg  v.  Kent,  6  Bing.  614. 

766 


CHAP.  II.]  MUTUAL   OBLIGATIONS.  §  472 

only  by  remote  analogy  and  the  connection  between  master  and 
servant  is  not  close ;  the  remedy  must  otherwise  be  left  to  the 
common-law  courts.1  "  Consider,"  said  Lord  Chancellor  Truro, 
"  what  the  effect  would  be ;  how  is  it  possible  for  an  employer 
or  an  agent  to  go  on  in  the  intimate  connection  which  such  a 
contract  is  calculated  to  create  ?"2  So,  too,  has  injunction  been 
lately  refused  to  enforce  an  executory  contract  of  apprenticeship, 
as  a  proceeding  without  precedent.3  Where  the  contract  was 
for  future  employment,  and  the  employer  repudiates  without 
justification  when  the  time  comes,  thereby  refusing  to  receive 
the  other  party  into  his  service,  the  remedy  under  modern  prac- 
tice is,  not  an  action  for  wages,  but  to  recover  damages  as  for 
breach  of  the  contract  of  hire.4 

§  472.  Obligation  to  pay  Wages  ;  Servant's  Right  to  recover. 
—  The  servant's  right  to  compensation  follows  from  the  fact 
that  the  parties  have  fairly  entered  into  the  relation  of  employer 
and  employed  with  the  reciprocal  rights  and  duties  of  that  rela- 
tion ;5  and  it  should  be  presumed,  where  no  quasi  parental  rela- 
tion existed,  that  such  labor  was  to  be  in  some  way  remunerated, 
and  this  most  naturally  by  money  wages.6  The  question  whether 
the  person  who  sues  for  his  wages  did  his  duty,  or,  if  discharged, 
was  discharged  without  fault,  is  for  the  jury  to  decide  upon  all 
the  facts.7 

Where  the  servant  has  been  wrongfully  discharged  from  his 
master's  employ,  two  remedies,  both  at  common  law,  are  open  to 
him  :  one,  to  treat  the  contract  as  a  continuing  one,  and  sue  in 
damages  for  breach  thereof;  the  other  to  consider  it  as  rescinded, 
and  sue  his  master  on  a  quantum  meruit  for  the  services  he  has 
actually  rendered.8  Formerly  it  was  thought  that  he  had  a  third 
remedy,  namely,  to  wait  till  the  termination  of  the  period  of 
service,  and  then  sue  for  his  whole  wages  in  assumpsit,  relying 

1  Stocker  v.  Brockelbank,  20  L.  J.  8  McDonald  v.  Boeing,  43  Mick.  394. 
Ch.  n.  s.  408.     See  Willis  v.  Childe,  13     See  §§  458-464. 

Beav.  117.  8  Moreland    v.   Davidson,  71  Penn. 

2  Stocker  v.  Brockelbank,  ib.  St.   371;  Hay  v.  Walker,  65    Mo.    17; 
8  Webb  v.  England,  29  Beav.  44.           Jordan  v.  Foxworth,  48  .Miss.  607. 

4  Howard  v.  Daly,  61  N.  Y.  362.  The  7  Echols  v.  Fleming,  58  (ia   156. 

person   hired   should   seek   out  a  new  8  Lilley    v.    Elwin,    11    Q.  15.  755; 

service,  so  as  to  reduce  the   damages.  Plancho  v.  Colburn,  8  Biug.   14;   Col- 

Ib.  burn  v.  Woodworth,  31  Barb   381. 

767 


§472 


THE   DOMESTIC    RELATIONS. 


[PART    VI. 


on  the  doctrine  of  constructive  service  ; 1  but  according  to  the 
best  authorities,  this  course  cannot  now  be  adopted ;  for  the  dis- 
charged servant  though  wrongfully  dismissed  before  the  agreed 
expiration  of  the  term,  is  bound  to  make  the  best  use  of  his  time 
and  seek  out  some  new  employment.2  The  first  is  the  remedy 
usually  adopted ;  and  here  the  servant  can  recover  wages  for  the 
whole  term,  less  what  he  had  an  opportunity  to  make  by  like 
service  after  his  dismissal,3  and  it  is  damages  rather  than  strict 
wages  that  he  recovers.  To  sustain  this  action,  the  servant  must 
have  been  ready  and  willing  to  serve  ;  but  he  need  not  offer  to 
do  so.  The  amount  of  damages  which  he  should  recover  must 
depend  upon  the  nature  of .  the  contract  and  the  wages  agreed 
upon ;  the  jury  may  exercise  a  large  discretion ;  and,  where  no 
specific  wages  have  been  agreed  upon,  the  measure  is  fixed  by 
considering  what  is  the  usual  rate  of  wages  for  the  employment 
contracted  for,  and  what  time  would  be  reasonably  lost  before 
another  situation  could  be  obtained.4  The  second  form  of  action 
treats  the  contract  of  service  and  hiring  as  rescinded ;  and  the 


1  Gandall  v.  Pontigny,  1  Stark. 
157  ;  Collins  v.  Price,  5  Bing,  132  ;  2 
Smith,  Lead.  Cas.  17,  n.  to  Cutter  v. 
Powell ;  James  v.  Allen  Co.,  44  Ohio 
St.  226. 

2  Smith,  Mast.  &  Serv.  94,  n.,  and 
cases  cited ;  Fewings  v.  Tisdal,  1  Exch. 
295;  Beckham  v.  Drake,  2  Ho.  Lords 
Cas.  606  ;  Sherman  v.  Champlaiu 
Trans.  Co.,  31  Vt.  162;  Goodman  v. 
Pocock,  15  Q.  B.  576;  Chamberlin 
v.  Morgan.  68  l'cnn.  St.  168 ;  Perry  v. 
Simpson,  &c.  Co.,  37  Conn.  520 ;  How- 
ard v.  Daly,  61  X.  Y.  362;  Bennett  v. 
.Morton,  46  Minn.  113. 

3  Especially  if  he  waits  till  the  full 
time  expires.  Gardenhire  v.  Smith,  39 
Ark.  280.  See  rule  as  stated  in  68  Ga. 
169,  when-  one  was  allowed  to  sue  at 
tin-  end  of  each  month  of  the  unex- 
pired term 

*  See  Beckham  v.  Drake,  2  IIo. 
Lords  (';i^  606;  Fewings  v.  Tisdal,  l 
ESxch.  295  ;  Smith  v.  Thompson,  8  C.  B. 
4t ;  Given  v  Charron,  L5  Md.  502 ; 
Nations  v.  Cudd,  22  Tex.  550;  Sher- 
man v.  Champlain  Trans.  Co.,  31  Vt. 

768 


162.  In  case  of  unwarrantable  dis- 
charge, the  servant's  damages  are  prima 
facie  the  amount  of  wages  for  the  full 
term.  De  Leon  v.  Echeverria,  45 
N.  Y.  Super.  610;  126  Penn.  St.  171. 
But  if  employed  meantime  in  a  new 
place,  this  reduces  the  damages,  so  far 
as  may  be  reasonable.  Ansley  v.  Jordan, 
61  Ga.  482.  See  further,  as  to  proof, 
Howard  v.  Chamberlin,  64  Ga.  684 ; 
Bast  v.  Byrne,  51  Wis.  531  ;  Richard- 
son v.  McGoldrick,  43  Mich.  476.  As 
the  servant  is  prima  facie  entitled 
to  compensation  for  the  entire  term 
when  discharged  without  sufficient 
cause,  the  burden  of  proof  is  on  the 
defendant  master,  to  show  that  by  rea- 
sonable efforts  the  plaintiff  might  have 
obtained  similar  employment  elsewhere. 
Emery  v.  Steckel,  126  Penn.  St.  171. 
Like  service  is  the  standard  in  esti- 
mating opportunities,  for  such  servant 
is  not  bound  to  accept  employment 
substantially  different  or  inferior  in  re- 
duction of  damages.  llinchliffe  v. 
Koontz,  121  Ind.  422. 


CHAP.  II.] 


MUTUAL   OBLIGATIONS. 


§473 


ground  on  which  the  servant  sues  is  one  applicable  to  contracts 
in  general ;  namely,  that  when  one  party  to  a  contract  has  abso- 
lutely refused  to  perform  something  essential  on  his  side  of  the 
contract,  the  other  party  is  at  liberty  to  terminate  it,  and  sue  for 
services  rendered  under  a  quantum  meruit.1  Where  this  remedy 
is  elected  the  servant  can  only  recover  wages  for  the  period  dur- 
ing which  he  actually  served,2  or  a  reasonable  compensation  for 
such  period  if  no  wages  were  fixed.  But  while  the  servant  may 
elect  either  of  the  two  remedies,  he  cannot  pursue  them  together; 
and  if  he  sues  on  both  counts  in  his  action  he  must  take  the 
verdict  upon  one  only.3 

§  473.  The  Same  Subject ;  Rules  for  Payment  of  "Wages  ;  Off- 
sets ;  Preference;  Apportionment,  &c.  —  Wages  are  due  in  gen- 
eral for  work  performed ;  and  although  the  amount  of  wages 
was  left  to  the  master,  a  reasonable  remuneration  must  be  given.4 
Unless  the  servant  was  absolutely  worthless,  he  should  have  at 
least  what  his  services  were  worth,  even  though  negligent  and 


1  2  Smith,  Lead.  Cas.  17,  n.  to  Cut- 
ter v.  Powell,  nnd  authorities  cited ; 
Smith,  Mast.  &  Serv.  99.  See  Good- 
man v.  Pocock,  15  Q.  B.  576. 

a  Fewings  v.  Tisdal,  1  Exch.  295; 
Weed  v.  Burt,  78  N.  Y.  191  ;  Boyle  v. 
Parker,  46  Vt.  343.  For  services  ren- 
dered under  a  special  contract  which 
has  been  wrongfully  terminated,  or  its 
full  performance  prevented  by  the  mas- 
ter's fault,  the  servant  may  recover  as 
upon  an  implied  quantum  meruit.  Ral- 
ston v.  Kohl,  30  Ohio  St.  92 ;  Dobbins 
v.  Iliggins,  78  111.  440 ;  Barr  v.  Van 
Duyn,  45  Iowa,  228.  But  cf.  Provost 
!  v.  Carlin,  28  La.  Ann.  595.  The  father 
may  be  entitled  to  sue  where  putting 
his  young  son  to  work.  Harris  v. 
Separks,  71  N.  C.  372 ;  supra,  Part  III. 
c.  3.  Presumptions  that  wages  are  due 
are  not  favored  where  a  long  time 
elapses  after  the  relation  has  termi- 
nated before  any  demand  is  made.  99 
Penn.  St.  552. 

Where  a  servant  is  unjustly  dis- 
charged, while  the  master  may  reduce 
the  damage  by  showing  that  the  ser- 
vant obtained,  or  could  obtain  other 
49 


employment,  he  cannot  defeat  his  right 
of  action.  Wilkinson  v.  Black,  80  Ala. 
329;  7  Col.  562. 

A  contract  to  serve  a  year  on  a 
monthly  salary  does  not  oblige  the  em- 
ployee to  prove  performance  for  a 
year  or  prevention  from  performance, 
as  a  condition  precedent  to  recovering 
anything.  Matthews  v.  Jenkins,  80 
Va.  463.  Nor  does  refusal  to  continue 
employment  at  reduced  wages  preju- 
dice the  discharged  servant's  suit.  77 
Ala.  387. 

3  Goodman  v.  Pocock,  15  Q.  B. 
576  ;  Colburn  v.  Woodworth,  31  Barb. 
381. 

*  Bryant  v.  Flight,  5  M.  &.  W.  114  ; 
Peacock  v.  Peacock,  2  Camp.  45  ;  Law- 
son  v.  Perry,  Wright,  242.  But  see 
Taylor  v.  Brewer,  1  M.  &  S.  290.  See 
Goodman  v.  Pocock,  15  Q.  B.  576 ; 
Costigan  v.  Mohawk  R.  R.  Co.,  2 
Denio,  609.  The  amount  fixed  by  the 
master,  where  it  is  left  to  him,  is  con- 
clusive in  the  absence  of  fraud  or  bad 
faith.  Butler  v.  Winona  Mill  Co.,  28 
Minn.  205. 

769 


§  473  THE   DOMESTIC  RELATIONS.  [PART   VI. 

unskilful.1  The  rule  is,  that  a  servant  discharged  for  good 
reason  is  entitled  to  wages  up  to  the  time  of  discharge,  subject 
to  rules  of  apportionment  to  be  presently  considered,  and  the 
special  terms  of  a  contract ;  and  to  no  more.  But  the  mere 
existence  of  a  valid  contract  of  hiring  and  service  does  not 
necessarily  imply  a  contract  to  pay  wages ;  for  board,  lodging, 
clothes,  or  the  opportunity  of  learning  business,  might  be  a  suffi- 
cient compensation ;  particularly  in  case  of  the  young.2  So  any 
employer  has  a  right  to  judge  for  himself  how  he  will  carry  on 
his  own  business;  and  workmen,  having  knowledge  of  the  cir- 
cumstances, must  judge  for  themselves  whether  they  will  enter 
his  service.3 

The  master  is  not  bound  to  pay  increased  wages  for  voluntary 
increased  labor,  unless  he  has  contracted  to  do  so.4  Special 
terms  must  be  respected,  and  one  who  has  received  for  his  ser- 
vices all  that  was  bona  fide  agreed  upon,  can  recover  no  more, 
although  the  services  may  have  been  worth  more.5  Nor  is  there 
any  new  implied  contract  to  pay  wages  on  simple  and  lawful 
dissolution  of  a  special  contract.6  The  action  for  wages  should, 
of  course,  be  brought,  not  against  a  third  party,  but  against  the 
person  by  or  for  whom  the  plaintiff  was  hired  ;  and  to  ascertain 
this  is  not  always  easy.7 

The  master  cannot  set  off,  against  the  servant's  claim  for 
wages,  money  paid  by  him  to  his  own  medical  attendant,  unless 
the  servant  so  stipulated.8  Nor  a  gratuity  or  present  to  the 
servant  outside  the  contract  of  employment.9     Nor,  in  an  action 

1  McCormick  v.  Ketchum,  48  Wis.  6  Laraburn  v.  Cruden,  2  Man.  &  Gr. 
643.  253. 

2  Smith,  Mast.  &  Serv.  100,  n. ,  Rex  "  See  Smith,  Mast.  &  Serv.  104,  105, 
v.  Shinfield,  14  Bast,  541  ;  Davies  v.  and  cases  cited;  Perry  v.  Bailey,  12 
Davies,  9  Car.  &  P.  87  ;  Malthy  v.  liar-  Kan.  539;  Compton  v.  Payne,  69  111. 
wood,  12  Pari).  473  ;  Meredith  v.  Craw-  354.  Where  a  servant  continues  in  his 
ford,  34  End.  399;  Ansley  v.  Jordan,  61  master's  employment  many  years,  an 
(,:i    |-L<.  account  being  kept  up  without  full  set- 

Elaydenv.  Smithville,  &c.  Co.,  29  tlement,  the  statute  of  limitations  is  not 

Conn.  548.  construed  to  apply.    Smith  v.  Velie,  60 

1   Bi  II    v.    Drummond,    Peake,    45.  N.  Y.  106. 
Working  voluntarily  during  unseason-         *  Sellen  v.  Norman,  4  Car.  &  P.  80. 
able  hours  affords  no  legal  right  to  ox-         '•'  Neal  v.  Gilmore,  79  Penn.  St.  421. 

tra  compensation  beyond   that  agreed  Perquisites  may  have  entered  into  the 

upon.     56  Wis.  671.  contract,  of  hiring  by  way  of  lessening 

-  Bradbury  v.  Helms,  92  111.  35.  thewages.    Bennettv.  Stacy,  48  Vt.163. 

770 


CHAP.  II.]  MUTUAL   OBLIGATIONS.  §  473  CI 

for  an  infant's  wages,  money  advanced  for  articles  not  necessa- 
ries ;  or  coach  fare  for  her  mother.1  Nor,  as  it  is  held,  can  he 
set  off,  against  wages,  a  claim  for  articles  lost  or  broken  by  care- 
lessness ;  he  should  sue  in  a  cross-action.2  But,  in  an  action 
of  recompense  for  services,  the  employer  may  show,  by  way  of 
recoupment  of  damages,  loss  sustained  through  the  breach  of  the 
person  employed, 3  and  in  modern  practice  this  right  to  recoup 
damages  is  liberally  applied. 

Modern  bankruptcy  acts  frequently  provide  that  servants  or 
clerks  shall  be  preferred  to  general  creditors  in  the  distribution 
of  assets.4  It  would  appear  that  the  bankruptcy  of  the  master 
does  not,  per  se,  dissolve  a  contract  of  hiring ;  yet  the  assignees 
cannot  let  out  personal  services  for  him.5 

§  473  a.  Effect  of  Death  upon  the  Relation  ;  Apportionment,  &c. 
The  death  of  the  master  discharges  his  servant ;  and,  according 
to  the  strict  rule  of  law,  it  would  appear  that  where  the  contract 
is  entire  for  a  year's  service,  and  neither  custom  nor  statute 
intervenes,  the  death  of  the  master  in  the  middle  of  the  year 
utterly  deprives  the  servant  of  compensation  for  the  broken 
period.6  A  contract  of  apprenticeship,  in  so  far  as  it  was  a  per- 
sonal contract,  is  also  terminated  by  the  master's  death.7  Here 
act  of  God  intervenes,  and  whether  the  death  be  that  of  master 
or  servant,  the  rule  in  all  contracts  where  the  service  may  be 
deemed  purely  personal,  as  it  is  in  household  employment,  should 
be  that  the  contract  relationship  is  dissolved,  leaving  the  survivor 
free  to  engage  or  serve  elsewhere.8     But  the  rule  of  apportion- 


1  Hedgely  v.  Holt,  4  Car.  &  P.  104.  States  bankruptcy  act,  March  2,  1867, 

2  Le  Loir  v.  Bristow,  4  Camp.  134.  §  27  (since  repealed). 

It  is  no  bar  to  the  servant's  suit  that  5  See   Thomas   ».   Williams,  1   Ad. 

he  failed  to  account  for  small  sums  of  &  El.  685  ;  Williams  v.  Chambers,  10 

money  that  came  to  his  hands ;   there  Q.  B.  337. 

being  doubt  of  his  criminality.     Turner  6  1  Wms.  Ex'rs,  644  ;  Smith  Mast.  & 

v.  Kouwenhoven,  100  N.  Y.  115.  Serv.  111.     But  see  Jackson  v.  Bridge, 

3  Still  v.  Hall,  20  Wend.  51 ;  Pixler  12  Mod.  650. 

v.  Nichols,  8  Iowa,  106;  Hunter  v.  Lit-  ">  Bac.  Abr  tit.  Master  and  Servant, 

terer,  1  Baxt.  168;  Blodgett  v.  Berlin  (G).     But  statutes  are  not  always  to 

Mills,  52  N.  H.  215  ;  English  v.  Wilson,  this  effect.     Phoebe  «>.  Jay,  1  Bre.268. 
34  Ala.   201.      See,   as  to   an   infant,         8  See   Lacy   v.  Getman,  119  N.  Y. 

Meeker  v.  Hurd,  31  Vt.  639.     And  see  109.     Skilled  or  unskilled  labor  must 

Stoddard  v.  Treadwell,  26  Cal.  294.  follow  this  rule. 

4  See  12  &  13  Vict.  c.  106;  United 

771 


§  473  a  THE   DOMESTIC   RELATIONS.  [PART   VL 

merit  is  now  so  much  favored  that  it  is  apprehended  to  be 
unlikely  that  a  construction  so  inequitable  would  in  this  day  be 
permitted  to  apply  to  contracts  which  left  the  intention  of  the 
parties  in  doubt  on  this  point.  And  custom  is  applicable,  in  the 
case  of  domestic  servants  at  least,  so  as  to  give  them  wages  for 
the  whole  time  served,  though  they  do  not  continue  in  service 
for  a  year.1  The  executors  or  administrators  of  the  master  are 
the  persons  to  whom  a  servant  must  look  for  such  arrears ;  not 
an  intermeddler  with  the  estate,  nor  kindred.2  In  some  States 
wages  of  domestic  servants  and  laborers  are  made  preferred 
debts ;  independently  of  statute,  it  is  not  probable  that  they  are 
so  entitled.3  Legacies,  if  actually  bequeathed  to  servants,  are 
sometimes  held  to  extinguish  all  claim  against  the  master's 
estate  for  wages.4  When  therefore  a  servant  keeps  on  in  the 
same  family  after  the  master's  or  hirer's  death,  it  can  only  safely 
be  by  some  new  contract  of  service  with  the  widow  or  some 
other  responsible  head  or  representative  of  the  household,  for 
though  the  original  contract  were  for  a  longer  time,  the  contract 
when  purely  personal  is  ended. 

On  legal  principle,  moreover,  when  a  servant  dies  in  the  midst 
of  the  term  of  his  engagement,  his  representatives  can,  it  seems, 
claim  nothing ;  but  here  again  might  custom  apply  the  rule  of 
apportionment,5  as  local  codes  sometimes  do.6  And  on  the  other 
hand  the  relation  of  service  being  a  personal  one,  the  master  has, 
on  the  servant's  death,  no  legal  indemnity  not  specially  stipu- 
lated, though  engaging  for  a  definite  time.  As  for  apportioning 
wages,  where  the  servant  leaves  wrongfully,  or  is  dismissed  by  his 
master  for  rightful  cause,  the  periodical  pay-day  not  having  come 

1  Cutter  v.  Powell,  6  T.  R.  320 ;  Nimmo  v.  Walker,  14  La.  Ann.  581  ; 
Smith,  Mast.  &  Serv.  112.  Sword  v.  Keith,  31  Mich.  247;  Shake- 

2  2  Wras.  Ex'rs,  822,  n.,  3d  ed. ;  speare  v.  Markham,  17  N.  Y.  Supr.  311, 
Welchman  v.  Sturgis,  13  Q.  B.  522.  322.     Or  for  breach  of  the  agreement. 

3  2  Wms.  Ex're,  lb.  Rut  see  2  Bl.  Lee  v.  Carter,  52  Ind.  342.  And  see 
Com.  511.  supra,  Part  III.   c.   5.     Semble,  in  case 

'  See   Booth   v.  Dean,   1    Myl.  &  K.  of  an  unqualified  legacy  to  a  servant, 

5G0;  Smith,  Mast.   &  Serv.  343  et  seq,  the  presumption  is  that  wages  to  the 

Bat  when    work    is    rendered    in   con-  master's  death  are  due  also. 
rideration  of  a  future  legacy,  and  the         6  Smith,  Mast.  &  Serv.  115  j  Cutter 

legacy  is  not  left,  the  servant  may  sue  v.  Powell,  6  T.  R.  320. 
the   estate  on  ;i   quantum   meruit.     See  •  Dryer  v.  Lewis,  57  Ala.  551. 

772 


CHAP.  II.]  MUTUAL   OBLIGATIONS.  §  474 

round  and  the  contract  being  an  entire  one.  lie  can  claim  nothing 
pro  rata,1  Yet,  with  regard  to  the  common  case  of  a  hired  ser- 
vant, though  the  hiring  be  in  a  general  way,  the  understanding 
is  common,  or  perhaps  the  custom,  that  the  servant  shall  be 
entitled  to  his  wages  for  the  time  he  serves.2  Unless  some  such 
rule  could  be  enforced,  the  stronger  party  would  be  constantly 
tempted  to  make  dismissal  a  pretext  for  refusing  to  pay  to  the 
weaker  the  little  pittance  which  was  justly  due.  And,  again, 
there  are  circumstances  from  which  a  waiver  of  strict  forfeiture  of 
the  servant's  accrued  wages  will  be  presumed,  even  though  the 
service  was  terminated  by  reason  of  the  servant's  misconduct.3 

§  474.  The  Same  Subject ;  Change  of  Contract ;  Excuse  by- 
Act  of  God;  Justifiable  Termination,  &c.  —  The  original  con- 
tract of  hiring  may  be  changed  without  any  very  formal  contract 
of  the  parties ;  this  change  being  inferred  from  the  facts,  and 
the  master's  liability  for  wages  fixed  accordingly.  Thus,  one 
engaged  to  work  on  half  time  and  receive  half  wages  may 
become  actually  employed  on  full  time,  and  so  may  gain  the 
right  to  recover  full  wages.4  Hence,  too,  wages  may  be  in- 
creased or  diminished,  upon  a  new  understanding,  while  the 
service  goes  on ;  or  one  who  comes  into  a  family  on  the  footing 
of  a  member  without  pay  at  all  may  subsequently  become 
entitled  to  wages.5     And  a  change  of  employers  having  occurred 


1  2  Smith,  Lead.  Cas.  17,  n.  to  Cutter  week,  or  month,  become  due  at  the 
v.  Powell;  Spain  v.  Aruott,  2  Stark,  close  of  each  day,  week,  or  month, 
236  ;  Turner  v.  Robinson,  6  Car.  &  P.  where  there  is  no  contrary  umlerstand- 
15;  Ridgway  v.  Huugerford  Market  ing.  De  Lappe  v.  Sullivan,  7  Col.  182. 
Co.,  3  Ad.  &  El.  171  ;  Lane  v.  Phillips,  6  As  to  one's  right  to  an  "  expert's  "  sal- 
Jones  (Law),  455;  Whitley  v.  Murray,  ary,  see  63  Wis.  132. 

34    Ala.    155;    Marsh    v.    Rulesson,    1  4  Edrington  v.  Leach,  34  Tex.  285. 

Wend.  514;  Beach  v.  Mullin,  5  Vroom,  5  Generally,  where  one  is  hired  for 

343;  29  Minn.  146,  470.  a   fixed    compensatiou    for   a   specified 

2  See  remarks  in  Cutter  v.  Powell,  time  and  continues  afterwards  to  serve, 
supra;  Smith,  Mast.  &  Serv.  116.  And  the  presumption  is  that  compensation 
see  Kessee  v.  May  field,  14  La.  Ann.  90;  shall  continue  at  the  same  rate.  But 
Gates  v.  Davenport,  29  Barb.  160;  the  actual  agreement  of  service  con- 
Massey  v.  Taylor,  5  Cold  447;  Costi-  trols  such  questions.  Smith  v.  Velie, 
gan  v.  Mohawk  R.  R.  Co.,  2  Denio,  60  N.  Y.  106.  Notification  by  the 
609  ;  Bverlee  v.  Mendel,  39  Iowa,  382.  master  that  he  will  hereafter  pay  dif- 

3  Patnote  v.  Sanders,  41  Vt.  66  ;  ferently  may  establish  a  new  contract, 
Prentiss  v.  Ledvard,  28  Wis.  131.  The  if  the  servant  <roes  on  with  his  work. 
wa^es   of   one   employed    by   the   day,  Spicer  v.  Earl,  41   Mich.   191.      Some' 

773 


§  474  THE   DOMESTIC    RELATIONS.  [PART   VT. 

by  reason  of  death,  casualty,  or  some  change  of  business,  the 
new  employers  may  render  themselves  liable  for  the  new  wages 
of  the  person  employed;  while,  on  the  other  hand,  the  original 
employer  continues  liable  to  the  person  employed,  if  the  latter 
receives  neither  actual  nor  constructive  notice  that  the  change 
has  occurred.1 

Where  the  performance  of  a  condition  is  prevented  by  the  act 
of  God,  it  is  excused.2  And  where  one  performs  services  under 
a  contract,  and  is,  before  the  expiration  of  the  full  period,  dis- 
abled by  sickness  or  inevitable  accident  from  completing  his 
contract,  he  is  entitled  to  recover  as  upon  a  quantum  meruit  for 
the  period  of  such  disability.3  Yet  it  seems  that  where  illness 
or  other  cause  renders  one  permanently  incompetent  to  perform 
his  contract,  this  is  a  sufficient  cause  of  dismissal,  if  the  em- 
ployer choose  so  to  regard  it.4  And  if  one  engages  in  service, 
concealing  a  disability  which  must  have  interfered  with  due 
performance,  he  may  be  made  to  bear  the  ill  consequences.5 

Where  the  agreement  provides  that  either  party  may  termi- 
nate it  at  any  time,  the  servant  may  quit  at  any  time  on  his 
own  motion,  and  recover  on  the  contract  for  services  rendered.6 
But  if  the  servant  agrees  to  work  for  a  given  time,  with  the 
privilege  of  leaving  if  dissatisfied,  he  cannot  recover  if  he  leaves 
without  alleging  dissatisfaction,  but  merely  to  attend  to  other 
business.7  If  employed  for  a  fixed  period  and  discharged  with- 
out cause,  the  servant  should  be  compensated  for  the  full  unex- 
pired term,  under  the  reservations  already  noted.8 


times  a  contract   of    employment    re-         8  Wolfe   v.  Howes,  29  N.  Y.  197 

quires  the  servant  to  give  two  weeks'  Cuckson    v.    Stones,  1    El.  &  El.  248 

or  other  stated  notice  of  his  desire  to  Fenton  v.  Clark,  11  Vt.  557;  Seaver  v 

quit  or  else  forfeit  wages.     13  R.  I.  Morse,  20  Vt.  620. 

303.      But    if   the    master   notifies  the  4  See  Ilarmer  v.  Cornelius,  5  C.  B 

servant    that    he   shall    next    day   cut  n.  s.   236;  Cuckson   v.  Stones,  supra, 

down  his  wages,  whereupon  the  servant  Seaver  v.  Morse,  supra;  36  La.  Ann 

leaves  nt   once,  such  a  contract  of  two  201. 

weeks' notice  does  not  avail  the  master.         6  Jennings  v.  Lyons,  39  Wis.  553 

51  ('.mi.  64.  As  where  one's  wife  engaged  to  work 

1  l'erry  /?.  Simpson,  &c.  Co.,  37  Conn,  for  a  year  while  pregnant.     lb. 
in-.  o  Evans  v.  Bennett,  7  Wis.  404. 

-  Cruise,    Dig.    Condition,    41,    43.         7  Monell  v.  Burns,  4  Deuio,  121. 
§  4T.'i-/    applies   this  in  ease  of   death  8  Chiles   v.   Nail   Mill   Co.,   68   111 

<<f  master  or    ervant,  123. 
774 


CHAP.  II.]  MUTUAL   OBLIGATIONS.  §  475 

§  475.  The  Same  Subject ;  Termination  by  Mutual  Consent ; 
Special  Conditions,  &c.  —  If  the  contract,  though  lor  a  certain 
period,  be  terminated  by  mutual  consent,  recovery  may  be  had 
on  a  quantum  meruit  for  the  services  actually  performed,  though 
for  nothing  more,  unless  expressly  agreed  to.1  And  work 
accepted  by  the  employer,  though  not  done  according  to  the 
terms  of  the  contract,  must  be  paid  for  at  its  fair  value,  not 
exceeding  the  stipulated  price.2  So  a  person  employed  on  a 
particular  service  by  the  month  or  year,  may  have  a  right  to 
compensation  for  services  rendered  on  request,  out  of  the  range 
of  such  employment,  even  without  express  contract  as  to  the 
terms  of  payment.3  Conditions  precedent,  such  as  submission 
of  work  to  inspectors,  performance  according  to  the  estimate  of 
third  parties,  special  stipulations  and  the  like,  may  enter  into 
such  contracts.4  But  all  such  stipulations  call  for  rational 
interpretation ;  and  even  if  the  master  reserves  the  right  to 
discharge  or  disapprove  work  at  discretion,  a  captious  exercise 
of  this  right  is  not  allowable.5 

Where  the  agreement  was  that  the  value  of  labor  and  services 
should  be  applied  in  payment  of  land  for  the  purchase  of  which 
no  written  contract  had  been  made  out,  it  was  held  that  an 
action  for  the  value  of  the  labor  and  services  would  not  lie.6 
But  if  I  sell  land  to  another,  to  be  paid  for  in  work  which  he 
presently  performs,  and  I  then  refuse  to  convey,  he  may  recover 
pay  for  his  work.7  So  it  was  held,  where  the  defendant  had 
contracted  to  sell  the  plaintiff  a  house,  which  the  plaintiff,  with 
the  defendant's  knowledge  and  without  objection  from  him,  put 
in  repair,  besides  performing  labor  in  part-payment ;  and  where 

1  Given   v.   Charron,    15    Md.    502;  5  Sloan  v.  Hayden,  110  Mass.  141  ; 

Patnote   v.   Sanders,   41    Vt.    G6.      As  Miller   v.  Cuddy,  4:i  Midi.  :>7:s  ;  Alex- 

■where  an  employer  acts  and  speaks  so  ander   v.   Americus,   61    Ga.    36.     For- 

as  to  warrant  the  servant  in  supposing  feiture   of   wages  in  such   contracts   is 

he  has  his  consent  to  leave.     Boyle  v.  not  to  be  favored ;  but  such  conditions 

Parker,  46  Vt.  343.  plainly  expressed  (as  for  instance,  un- 

-  English   v.   Wilson,  34  Ala.  201  ;  less   the   servant  gives  notice)  are  up. 

Dermott   v.    Jones,   23  How.    (U.   S.)  held.     Walsh  v.  Walley,  L.  R.9Q.  B. 

220.  3G7  ;  Preston   v.   American   Linen  Co. 

3  Cincinnati,  &c.  R.  R.  Co.  v.  Clark-  119  Mass.  400. 

son,  7  Ind.  595.  6  Congdon  v.  Perry,  13  Gray,  3. 

*  See  Baason  v.  Baehr,  7  Wis.  516 ;  7  Leach  v.  Rogers,  28  Ga.  247. 
Butler  v.  Tucker,  24  Wend.  447. 

775 


§  476  THE    DOMESTIC    RELATIONS.  [PART  VI. 

afterwards  he  was  prevented  from  completing  his  contract  by 
the  fault  of  the  defendant,  recovery  was  allowed  for  both  the 
labor  performed  and  the  value  of  the  improvements.1 

§  476.  Master's  Representations  as  to  Servant's  Character ; 
Guaranty  as  to  Character,  &c.  —  Mr.  Starkie  observes  that  the 
giving  a  character  of  a  servant  is  one  of  the  most  ordinary  com- 
munications which  a  member  of  society  is  called  on  to  make, 
but  is  a  duty  of  great  importance  to  the  interests  of  the  public; 
that  in  respect  of  that  duty  a  party  offends  grievously  against 
the  interests  of  the  community  in  giving  a  good  character  where 
it  is  not  deserved,  or  against  justice  and  humanity  in  either 
injuriously  refusing  to  give  a  character,  or  in  designedly  mis- 
representing one  to  the  detriment  of  the  individual.2  But  in 
the  absence  of  any  specific  agreement  to  that  effect  there  is  no 
legal  obligation  binding  a  person,  who  has  retained  another  as 
a  servant,  to  give  that  person  any  character  at  all  on  dismissal; 
and  no  action  will  lie  against  him  for  refusing  to  do  so.3  And 
the  decisions  on  this  subject  fully  establish  the  principle  that 
representations  of  a  servant's  character,  oral  or  written,  are'on 
the  footing  of  privileged  communications ;  and  that  wilful 
misrepresentation  must  appear  on  the  master's  part  to  render 
him  liable ;  not  merely  wrong  and  unfair  statements  made  in 
good  faith  and  without  malicious  intent.4 

But  a  guaranty  for  the  honesty  of  a  servant  is  sometimes 
given  for  the  master's  protection;  just  as  an  official  will  furnish 
his  bondsmen,  or  as  some  companies  guarantee  the  fidelity  of; 
clerks  and  trustees.  In  such  cases,  since  the  rights  of  a  guarantor 
are  carefully  watched,  the  master  must  on  his  part  exercise  due 
caution.  Thus,  on  a  continuing  guaranty  for  the  honesty  of  a 
servant,  if  the  master  discovers  that  the  servant  has  been  guilty 
of  dishonesty  in  the  course  of  the  service,  and  instead  of  dis- 
missing the  servant  he  chooses  to  continue  him  in  his  employ, 


1  Wright  v.  Haskell,  45  Me.  489.  son   v.   Scarlett,  1    B.  &  Aid.   240;  2 

3   I   Starkie,  Slander,  293.  Starkie,  Slander,  58.     And    see,  as    to 

3  Smith,  Mast.  &  Serv.  222  ;  Carrol  compelling  inspection  of  letter  written 

>\  Bird,  3  B»p   201.  concerning  a  discharged   servant,  Hill 

1   Smith,  223  -250,  and    cases   cited  ;  v.  Campbell,  L.  R.  10  C.  P.  222. 

Fountain  v,  Boodle,  3  ',»  15.  i^;  Hodg- 

77G 


CHAP.  II. J  MUTUAL  OBLIGATIONS.  §  477 

without  the  knowledge  and  consent  of  the  surety,  express  or 
implied,  he  cannot  afterwards  have  recourse  to  the  surety  to 
make  good  any  loss  which  may  arise  from  the  dishonesty  of  the 
servant  during  the  subsequent  service.1 

§  477.  Obligations  resting  specially  upon  the  Servant  ;  Per- 
formance of  his  Engagement.  — Now,  as  to  the  servant.  Of  the 
mutual  liabilities  of  master  and  servant,  some  are  to  be  dis- 
cussed with  more  especial  reference  to  the  latter  than  the  for- 
mer. Thus  the  servant,  once  engaged  by  a  valid  contract  to 
enter  his  employer's  service,  cannot  refuse  or  neglect  to  enter 
without  becoming  liable  in  damages  ;  though  whether  the  mas- 
ter may  care  to  pursue  his  remedy  is  another  matter.2  The 
same  may  be  said  of  one  who  without  sufficient  cause  leaves 
his  employment  before  the  legal  termination  of  the  period 
agreed  upon.3  That  the  service  is  unpleasant  or  the  labor 
severe  would  not  alone  justify  his  departure.4  But  if  the  mas- 
ter's unprovoked  assault  causes  the  servant  to  fear  injury,  the 
latter  may  properly  leave.5 

While  performing  service  under  his  contract  the  servant  is 
bound  to  regard  the  interests  of  his  master.  He  cannot,  it 
would  appear,  solicit  his  master's  customers  into  his  own  busi- 
ness, so  long  as  his  engagement  lasts,  without  rendering  himself 
liable  to  action  ;  but  it  is  held  that  he  can  do  so  when  the  ser- 
vice is  at  an  end,  and  he  sets  up  for  himself.6     He  must  account 

1  Phillips  v.  Foxall,  L.  I?.  7  Q.  B.  placed  without  irreparable  damage,  in- 
666.  As  to  the  master's  liabilities  for  junction  is  sometimes  granted  to  compel, 
the  servant's  injuries,  see  infra,  c.  4.  where  such  persou  has  no  good  excuse 

2  See  Richards  v.  Hayward,  2  Man.  to  offer  for  non-fulfilment  of  the  con- 
&  Gr.  574;  Smith,  Mast.  &  Serv.  64.  tract.  Rogers  Man.  Co.  v.  Rogers,  58 
In  cases  of  hiring  analogous  to  domestic  Conn.  356  ;  57  Hun,  587. 

service  injunction  has  sometimes  been  3  Bird    v.   Randall,   3    Burr.    1345; 

considered.     Such  process  would  not  be  Lees  v.  Whitcomb,  5  Ring.  34. 

favored   to   compel   a   reluctant    cook,  *  Angle  v.  Hanna,  22  111.  429. 

butler,  or   housemaid,  to   keep  an   en-  5  Bishop  v.  Ranney,  59  Vt.  316. 

gagement   to   serve;    nor  in   any  case,  6  Nichol  v.  Martyn,  2  Esp. 732.    Yet 

perhaps,  where  it  is  not  very  difficult  to  we  presume  that  this  action  would  lie, 

engage  some  one  else  for  the  vacancy,  if  the   servant  had  availed   himself,  to 

See  also  §  471.     Remedies  at  common  las  master's  injury  an  1  his   own    profit, 

law  for  damages  should  indemnify  more  of    certain    peculiar    facilities    derived 

appropriately.     But  in  the  case  of  some  under    the    contract    of     employment, 

reluctant  artist,  singer,  or  other  person  though  he  waited  till  the  engagement' 

engaged   of     extraordinary   fame   and  ended  before  making  use  of  them.     See 

skill,  who  could  not  be  released  or  re-  Adams  Express  Co.  v.  Trego,  35  Md.  47. 

777 


§  478  THE  DOMESTIC   RELATIONS.  [PART   VI. 

to  his  employer,  like  all  other  agents,  for  money  or  other  goods 
received  in  the  line  of  duty,  and,  except  in  certain  cases,  cannot 
set  up  the  right  of  a  third  party  in  opposition  to  the  employer's 
interests.1  He  should  devote  his  time  and  energy  to  his  master's 
interests  as  those  ordinarily  diligent  in  his  pursuit  are  wont  to 
do  under  the  circumstances.  The  maxim  that  one  cannot  serve 
two  masters  has  especial  force  when  applied  to  domestic  service.2 
§  478.  Servants  Accountability  to  his  Master ;  Negligence, 
Unskilfulness,  &c.  —  So  is  the  servant  liable  for  gross  negligence 
in  the  care  of  his  master's  property  intrusted  to  him,  and,  as  it 
would  appear,  for  want  of  ordinary  care  and  diligence ;  though 
not  for  ordinary  accidents  where  no  culpable  negligence  ap- 
pears.3 Servants  are  also  liable  for  fraud  and  misfeasance,  as 
in  cases  of  simple  bailment  generally.  Suits  of  this  sort,  strictly 
applicable  to  domestic  servants,  are  extremely  rare ;  but  there 
are  instances  to  be  found  in  the  old  books.  Thus  it  is  said  that 
if  a  man  deliver  a  horse  to  his  servant  to  go  to  market,  or  a  bag 
of  money  to  carry  to  London,  which  he  neglects  to  do,  the  mas- 
ter may  have  an  action  of  account  or  detinue  against  him.4  An 
employee  or  servant  is  liable  in  a  suit  brought  by  his  master  to 
indemnify  the  latter  from  the  consequences  of  his  negligence  or 
misconduct.5  And  this,  too,  notwithstanding  the  concurring 
negligence  of  another  servant  not  made  a  defendant  with  him.6 
And  a  person  employed  to  do  work  requiring  skill  or  involving 
unusual  hazard,  and  undertaking  to  do  it  for  suitable  compensa- 
tion in  a  skilful  or  careful  manner,  is  bound  to  so  do  it ;  and  he 
is  responsible  to  his  employer  for  injury  occasioned  the  latter  by 
the  negligent  manner  in  which  he  performed  the  work.7     There 

1  Sec  Story,  Agency,  §  217  and  n. ;  Gr.  165  ;  Smith,  Mast.  &  Serv.  66.     But 

Dixon    v.    Hamond,  2  B.  &   Aid.  310;  see  Colburn  v.  ratmore,  1   Cr.  M.  &  It. 

Smith,    Mast.    &   Serv.    67,   and    cases  73. 

cited  ;  Murray  v.  Maun,  2  Exch.  538;  <>  Zulkee  v.  Wing,  20  Wis.  408. 

Cheesman  v.  Exall,  6  Exch.  841.  7  Willard    v.    Pinard,   44    Vt.   34; 

-  See  S  488.  Holmes  v.  <  >nion,  2  C.  B.  n.  s.  790 ;  Pix- 

8  Savage  V.  Walthew,  11  Mod.  135;  ler  v.  Nichols,  8  Iowa,  106;  English  v. 

Bac.  Al>r.  tit.  Master  and  Servant  (M),  Wilson,  34    Ala.  201  ;  Parker  v.   Piatt, 

(I;;  Smith,  Mast,.  &  Serv.  65.  74   111.  430;    Tag."   v.   Wells,  37  Mich. 

1    Bac.  Al.r.  tiL.  .Mast.-r  and   Servant  415.       See    also    Story,    Bailm.    §  432; 

(M).  Schooler,    Bailm.  107.     But  as  to  an 

'■•  Green  V.   New  River  ('<>.,  4  T.  R.  infant  servant,  see  Meeker  v.  Hurd,  31 

589;  Pritchard  v.  Hitchcock,  6  Man.  &  Vt.  639. 
77S 


CHAP.  III.]        EIGHTS,   ETC.,    OF    THE   SERVANT.  §  481 

is  no  reason,  apart  from  some  special  contract  to  which  he  is  a 
a  party,  why  the  servant  of  a  common  carrier  should  be  held 
responsible  to  his  master  on  the  footing  of  an  insurer.1 

§  479.  Master  and  Servant  may  defend  one  another.  —  The 
old  writers  say  that  the  servant  may  justify  a  battery  in  the 
necessary  defence  of  his  master ;  and  the  master,  as  the  weight 
of  argument  goes,  may  do  the  same  on  his  servant's  behalf.2 

§  480.  Servant  a  Competent  Witness  for  his  Master.  —  A 
mere  agent  or  servant  is  a  competent  witness  for  his  principal 
or  master,  from  public  convenience  or  necessity.3 


CHAPTER   III. 

RIGHTS   AND   LIABILITIES    OF   THE    SERVANT   AS    TO    THIRD 
PERSONS. 

§  481.  Servant  not  personally  Liable  on  Contracts;  Excep- 
tions. —  As  a  general  rule,  servants  are  not  liable  personally 
on  contracts  entered  into  by  them  on  behalf  of  their  masters. 
Such  a  principle  would  be  inconsistent  with  the  very  relation. 
But,  like  any  other  agent,  a  servant  may  make  himself  liable, 
provided  he  contract  on  his  own  and  not  his  master's  behalf.4 
Questions  of  this  sort  turn  upon  circumstances  ;  as  to  whom, 
for  instance,  the  credit  was  given.  But  if  there  be  a  wrong  or 
omission  of  right  on  the  servant's  part ;  if,  for  instance,  he 
transcends  his  powers,  or  acts  without  authority,  like  all  other 
agents  he  becomes  personally  liable  to  the  person  with  whom 


1  De  Reamer  v.  Pacific  Express  Co.,  Evid.  §  416;   1   Phill.   Evid.   10th   ed. 
84  Mo.  520.  507  et  seq. 

2  See  2  Kent,  Com.  261 ;  1  Bl.  Com.  4  Smith,  Mast.  &  Serv.  194 ;  Story, 
429.  Agency,  §  261  ;  Owen  v.  Gooch,  2  Esp. 

3  Wainwright  v.  Straw,  15  Vt.  215 ;  567 ;  Thomson  v.  Davenport,  9  B.  &  C 
Stringfellow  v.  Mariot,  1  Ala.  573  ;  Doe  88. 

v.  Himelick,  4  Blackf.  494 ;   1  Greenl. 

779 


§  482  THE   DOMESTIC   RELATIONS.  [PART   VI. 

he  deals  in  his  master's  name.1  For,  in  respect  to  such  con- 
tract, he  is  no  servant  at  all,  but  one  rather  who  wilfully  or 
innocently  misrepresents  himself  as  such. 

Instances  of  this  principle  occur  in  every-day  transactions 
of  life.  A  broker  who  puts  his  own  name  to  a  bill  of  ex- 
change,  without  words  to  imply  an  agency,  renders  himself 
personally  liable  to  a  stranger.2  But  the  receipt  of  a  servant 
is  the  receipt  of  his  master,  for  money  rightfully  paid  him  in 
the  course  of  business.3  And  a  sheriff's  deputy  is  not  liable 
to  a  judgment  creditor  for  money  collected  by  him  under  an 
execution  in  the  creditor's  favor.4 

The  reason  of  the  general  rule  of  exemption  is  that  the  prin- 
cipal or  master,  not  the  agent  or  servant,  shall  answer  for  the 
consequence  of  the  latter' s  contract.  The  servant  is  directly 
responsible  to  his  master  and  consequently  not  to  strangers.5 

§  482.  Rule  of  Servant's  Liability  for  his  Torts  and  Frauds. 
—  But,  as  Lord  Kenyon  has  observed,  the  principle  does  not 
apply  to  cases  where  there  is  corruption  in  the  foundation  of 
the  contract,  or  it  is  bottomed  in  oppression  or  immorality.6 
Where  money  is  obtained  by  means  of  trespass  or  tort ;  where 
a  servant  misappropriates  a  fund  intrusted  to  him  to  be  paid 
to  others ;  in  these  and  similar  cases  it  has  been  held  that  the 
servant  is  suable  by  third  persons.7  If,  for  instance,  a  debtor 
sends  by  his  own  servant  money  which  he  owes  his  creditor, 
and  the  servant  refuses  to  deliver  it,  and  retains  it,  an  action 
for  the  money  may  be  maintained  by  the  creditor  against  the 
servant.  But  it  is  otherwise  if  the  debtor  countermanded  his 
orders  and  received  the  money  back  from  the  servant.8 

In  cases  (if  tort,  the  rule  is  general  that  all  persons  con- 
cerned in  the  wrong  are  chargeable  as  principals.     For  a  mis- 

1  Smout  v.  Ilberry,  10  M.  &  W.  1  ;  of  agency  applicable  to  the  servant's 

Paterson    v.    Gandasequi,   L5   East,  02;  acts  on  Ins  master's  behalf. 
s.  c.  2  Smith,  Lead.  Cas.  -358.  6  See  Shearm.  &  Redf.  Negligence, 

-  Leadbitter  v.   Furrow,  5  M.  &  S.  128;  Smith,  Mast.  &  Serv.  194  et  seq. 
345;  Jones  v.    Littledale,  •'>  Ad.  &  El.  8  Miller  v.  Aris,  3  Esp.  232;  Smith, 

486.  Must.  &  Serv.  204. 

Bamford  v.  Shuttleworth,  11  Ad. &         "  Buller    v.    Harrison,    Cowp.   565; 

1.1   926.  Tngman  v.  Hopkins,  4  Man.  &  (Jr.  389; 

1  Colvin   v.   Holbrook,  2  X.  Y.  126.  Howell  v.  Batt,  5  B.  &  Ad.  504. 
And  see  inj    i   .    189,  as  to  the  doctrine  8  Lewis  v.  Sawyer,  44  Me.  332. 

7  SO 


CHAP.  III.]       EIGHTS,    ETC.,   OF   THE   SERVANT.  §  482 

feasance,  therefore,  or  positive  wrong,  which  affects  the  person 
or  property  of  another,  the  servant  cannot  shield  himself  by 
the  excuse  that  he  acted  merely  in  obedience  to  his  master's 
orders,  or  for  his  master's  benefit.1  It  is  said  that  in  such  a 
case  he  is  sued,  not  as  a  deputy  or  servant,  but  as  a  wrong- 
doer.2 Such  distinctions  run  through  the  whole  law  of  service 
or  agency  in  its  broadest  relation,  and  are  constantly  discussed 
outside  the  narrow  range  of  domestic  service. 

But  some  distinguish  between  misfeasance  and  nonfeasance, 
or  rather  between  wrongful  acts  and  those  of  mere  carelessness. 
For  mere  negligence  or  nonfeasance  the  servant  is  not  liable  to 
a  stranger.3  Thus,  where  a  banker  is  employed  to  collect  a  note 
which  he  puts  into  the  hands  of  another  banker,  through  whose 
negligence  the  debt  is  lost,  the  creditor  cannot  sue  the  latter 
banker,  though  he  was  the  one  actually  at  fault.4  This  same 
principle  is  applied  in  Massachusetts,  to  protect  one  servant 
from  the  injurious  consequences  of  his  own  wrongful  acts  to  a 
fellow-servant  whenever  such  acts  amount  to  nothing  more  than 
mere  negligence  or  carelessness.5  So  the  servant  of  a  carrier  is 
not  generally  responsible  for  the  loss  of  a  parcel,  to  the  owner, 
who  should  rather  look  to  the  master.6  And  a  servant  who  has 
driven  a  stray  horse  from  the  highway  into  his  master's  pasture, 
for  the  purpose  of  preventing  it  from  straying  on  cultivated 
laud,  does  not  become  liable  for  its  conversion  by  turning  it  into 
the  highway  again  by  direction  of  his  master.7 

Perhaps  the  true  principle  is  to  refer  all  such  acts  of  the 
servant  to  the  scope  of  his  employment  in  the  particular  service 
of  his  master.  "We  shall  presently  examine  the  doctrine  of 
respondeat  superior  with  reference  to  the  master,  under  which 

1  Sands  v.  Child,  3  Lev.  352  ;  Lane  v.  8  See  Lane  v.  Cotton,  supra,  per 
Cotton,  12  Mod.  488;  Perkins  v.  Smith,     Lord  Holt. 

1  Wils.  328  ;  Smith,  Mast  &  Serv.  213,  4  Montgomery  Bank  r.  Albany  Bank, 

214  ;  Richardson  v.  Kimball,  28  Me.  463 ;  7  N.  Y.  459. 

Bennett  v.  Ives,  30  Conn.  329  ;  Johnson  c  Albro  v.  Jaquith,  4  Gray,  99.     And 

v.   Barber,   5   Gilm.   425.     See  Hill  v.  see  Brown  v.  Lent,  20  Yt.  529.     But 

Caverly,  7  N.  H.  215.  see  Phelps  v.  Wait,  30  N.  Y.  78. 

2  See    Lane   v.   Cotton,  supra,  per  6  Williams  v.  Cranstoun,  2  Stark.  82. 
Lord    Holt;    Hoffman    v.  Gordon,    15  See  Smith,  Mast.  &  Serv.  213  et  seq. 
Ohio  St.  211.  7  Wilson  v.  McLaughlin,  107  Mass 

587. 

781 


§  483  THE    DOMESTIC    RELATIONS.  [PART  VI. 

head  it  is  most  commonly  considered.  For  as  a  master  is  more 
likely  to  be  pecuniarily  responsible  than  his  servant,  so  do  those 
who  would  sue  for  injuries  incline  most  willingly  to  make  the 
master  the  defendant  in  their  suits  to  recover  damages.1  Where 
a  servant  lawfully  takes  a  chattel  with  its  owner's  consent,  as 
for  instance  a  sewing-machine  for  his  master  to  repair  it,  he  is 
not  liable  if  his  master  wrongfully  converts  the  chattel  to  his 
own  use,  unless  it  be  shown  that  he  personally  was  a  party  to 
the  wrongful  act,2  for  a  servant  is  no  agent  in  his  master's 
torts  ;  but  had  the  servant  connived  knowingly  at  the  wrong, 
he,  too,  should  have  been  liable  as  a  wrong-doer. 

§  483.  Torts  and  Frauds  of  Public  Officers.  —  Government  is 
not  liable  for  the  torts  and  frauds  of  its  agents.  Nor  are  public 
officers  in  general  liable  for  the  misdeeds  of  their  subordinates. 
Thus  the  Postmaster-General  cannot  be  sued  for  the  loss  of  let- 
ters in  the  post-office  through  the  fault  of  his  agents.3  "  As  to 
an  action  lying  against  the  party  really  offending,"  Lord  Mans- 
field, however,  observed,  "  there  can  be  no  doubt  of  it ;  for 
whoever  does  an  act  by  which  another  person  receives  an  injury, 
is  liable  in  an  action  for  the  injury  sustained."  4  And  in  sev- 
eral instances  have  deputy-postmasters  been  sued  in  damages  for 
their  own  torts.6  So  are  certain  public  officers,  as  sheriffs  and 
others,  acting  in  a  purely  ministerial  capacity,  frequently  held 
to  answer  the  consequences  of  their  misconduct.6  But  great 
latitude  is  to  be  allowed  one's  official  acts  performed  from  a 
sense  of  duty  as  guardian  of  the  public  interests,  and  with  hon- 
orable motive,  even  though  private  individuals  may  incidentally 
suffer  detriment  thereby  ;  and  as  to  mere  negligence  of  a  public 
servant,  the  rule  of  all  service  applies,  that  he  responds  only 
to  his  superior,  and  not  to  the  third  person  injured,  who  must 
always  look  to  the  employer.7 

1  See  next  chapter.  4  Cowp.  765.     And  see  Smith,  Mast. 

2  Silver  v.  Martin,  59  N.  II.  580.  &  Serv.  219. 

8  Whitfield  v.   Lord  Le  Despencer,  6  See  5  Burr.  2709,  2711,  2715. 

Cowp.  765.     Nor  should  lie  be,  since  he  6  Bac.  Abr.  tit.  Sheriff, 

is  but  the  servant  of  government,  —  the  7  The  peculiarity  of  this  Post-Office 

common    employer    of    both    superior     bailment    is    considered    iu    Schouler, 
and   subordinate   officials.    See  4  Am.    Bailm.  §§  265-272. 
Law    Rev.    I  — 1 7.     And    see    Schouler, 
Bailm.  gg  265-272. 

782 


CHAP.  IV.]  RIGHTS,   ETC.,   OF   THE   MASTER.  §  487 

§  484.  Criminal  Accountability  of  Servant.  —  For  his  unlaw- 
ful acts  knowingly  committed  in  his  master's  service  a  servant  is 
generally  criminally  answerable.1  And  a  hired  hand  who  abets 
his  employer  in  a  crime  with  knowledge  of  the  latter's  guilty 
intent  is  himself  accountable.2 


CHAPTER   IV. 

GENERAL   RIGHTS    AND    LIABILITIES    OF    THE    MASTER. 

§  485.  Leading  Division  of  this  Chapter.  —  In  this  chapter  we 
shall  discuss,  first,  the  general  rights,  second,  the  general  liabili- 
ties, of  the  master  as  concerns  third  persons  and  his  servant. 

§  486.  Master's  Right  of  Action  for  Injuries  to  Servant.  — 
First,  as  to  his  rights.  The  right  of  action  to  the  master  for 
personal  injuries  sustained  by  his  servant  is  recognized  in  sev- 
eral instances.3  This  right  grows  out  of  the  loss  of  service  sus- 
tained by  the  master,  and  the  same  principle  has  been  noticed 
with  reference  to  parents.  A  service  de  facto  is  sufficient  in  all 
such  cases.4  And  it  cannot  be  pleaded  in  defence  that  the  acts 
complained  of  amounted  to  felony,  and  that  the  person  com- 
mitting them  had  not  been  prosecuted.  But,  under  a  familiar 
rule,  the  master  cannot  maintain  an  action  for  injuries  which 
cause  the  immediate  death  of  his  servant.5 

§  487.  Right  of  Action  for  Seduction,  Enticement,  &c,  of 
Servant.  —  Again,  the  action  for  seduction  depends  upon  the 
existence  of  the  relationship  of  master  and  servant ;  and  the 

1  State  v.  Walker,  16  Me.  241.  cases  cited;    Bac.  Ahr.   tit.  Master  & 

2  English  v.  State  (Texas),  Am.  Dig.  Servant  (O).  The  relation  of  mas- 
1891.  ter  and  apprentice  enables  such  suit  to 

3  See  Duel  v.  Harding,  Stra.  595 ;  be  brought.  Here  the  injury  was  sus- 
Hall  v.  Hollander,  4  B.  &  C.  660  ;  Hod-  tained  while  the  servant  was  a  passen- 
soil  v.  Stallebrass,  11  Ad.  &  El.  301 ;  ger.  Ames  v.  Union  R.,  117  Mass.  541. 
Dixon  v.  Bell,  1   Stark.  287  ;    Ames  v.  See  §  457,  supra,  n. 

Union  Co.,  117  Mass.  541.  5  Osborn  v.  Gillett,  L.  R.  8  Ex.  88. 

4  Smith,  Mast.  &  Serv.  83-85,  and 

783 


§  487  THE   DOMESTIC    RELATIONS.  [PART   VI. 

loss  of  service  gives  the  right  of  action.  This  action  is  usually- 
brought  by  the  parent,  or  one  standing  in  the  stead  of  a  parent ; 
though  the  legal  remedy  is  not  perhaps  confined  to  such 
persons.1 

For  enticing  away  or  harboring  one's  servant  the  common 
law  also  gives  the  right  of  action  against  the  offending  party ; 
and  where  a  person,  after  notice,  continues  to  employ  another 
man's  servant,  that  other,  it  is  said,  may  maintain  an  action 
against  him,  although  at  the  time  he  hired  him  the  second  mas- 
ter did  not  know  that  he  was  hiring  another  man's  servant ; 
whence  it  follows  that  one  who  did  not  entice  may  yet  be  liable 
for  harboring.2  The  mere  attempt  to  entice  a  servant  away, 
no  damage  following,  does  not  entitle  the  master  to  maintain  an 
action.3  Nor  will  the  action  lie  after  the  master  has  recovered 
from  the  servant  a  stipulated  penalty  for  leaving  the  service  ;  4 
nor  for  inducing  a  servant  to  leave  at  the  expiration  of  the  time 
for  which  he  was  hired,  though  he  had  no  previous  intention  of 
leaving.5  For  causing  his  servants  to  leave  him  by  threats,  a 
master  may  also  sue.6 

A  genuine  subsisting  contract  of  service  between  the  servant 
and  his  former  master  should,  of  course,  be  shown ; 7  though 
there  may  be  a  binding  contract  of  service  merely  executory, 
which  one  wilfully  prevents  another  from  entering  upon  so  as 
to  render  himself  liable  in  damages  for  that  offence.8  Nor  can 
the  so-called  master,  where  two,  socially  equal,  occupy  a  rela- 
tion of  constructive  service,  rely  with  certainty  upon  the  force 


1  See  Parent  and  Child,  supra;  Noice  3  Bird  v.  Randall,  3  Burr.  1352.    Cf. 
v.  Brown,  39  N.  J.  L.  569  ;  Smith,  Mast.  Haskins  v.  Royster,  70  N.  C.  601. 

&  Serv.  85  et  seq.;    Addison  and  other         4  lb. 

general  writers  on  Torts.  5  Nichol  v.  Martyn,  2  Esp.  734  ;  Bos- 

2  Fawcet    v.    Beavres,    2    Lev.    63 ;  ton    Glass    Manufactory   v.    Binney,   4 
Smith,  Mast.  &  Serv.  79  ;  Blake  v.  Lan-  Pick.  425. 

yon,   6  T.   R.   221  ;  Bird  v.  Randall,  3  ,;  33  La.  Ann.  1261. 

I'.nrr.  1852  ;   Reg.  v.  Daniel,  6  Mod.  99,  7  See  Smith,  Mast.  &  Serv.  79,  and 

1H2.     And  sec  Lumley  v.  Gye,  2  Ell.  &  cases  cited;    Sykes  v.  Dixon,  9  Ad.  & 

I'd.    l'U',,  where   the   question    is   fully  El.  693 ;  Campbell  v.  Cooper,  34  N.  II. 

discussed.     Bui    laches  may  be  impu-  49.     It  is  enough  that  the  service   is 

table  to  the   master.      Dcmver   v.  Son-  one  at    will,    if   subsisting  when  inter- 

y.cr,  6   Wend.  486.     Local  statutes  are  rupted. 

in  aid  of  the  'I",  trine  of  the  text.      11  s   Walker  v.  Cronin,  107  Mass.  555. 

Lea,  259,  271. 

784 


CHAP.  IV.]  EIGHTS,   ETC.,   OF   THE   MASTER.  §  488 

of  language  to  help  him  through  his  suit  against  a  stranger.  In 
a  late  English  case  some  doubts  were  expressed  whether  this 
remedy  was  to  be  extended  beyond  the  case  of  menial  service 
and  laborers  ;  whether,  in  fact,  the  higher  classes  could  claim  its 
benefit  at  all  in  matters  growing  out  of  their  mutual  contracts.1 
The  general  rule  of  the  law  is  certainly  to  confine  its  remedies 
by  action  to  the  contracting  parties,  and  to  damages  directly  and 
proximately  consequent  on  the  part  of  him  who  is  sued;  the 
case  of  master  and  servant  being  exceptional.2  The  right  of 
action  in  such  cases,  founded  upon  the  pure  relation  of  service, 
is  not  greatly  favored  in  this  country,  though  it  is  distinctly  rec- 
ognized.3 And  the  enticement  of  a  servant  in  some  States 
renders  one  liable  to  prosecution.4 

The  general  doctrine  which  upholds  the  master's  action  in  all 
these  torts  is  that  a  valid  and  subsisting  service  owed  to  the 
master  has  been  interrupted,  to  his  injury,  by  another's  wrong- 
ful act. 

§  488.  Whether  Servant's  Outside  Acquisitions  belong  to  Mas- 
ter, &c.  —  What  a  servant  may  acquire  during  the  relation  of 
service,  entirely  without  the  legitimate  consideration  of  such 
service,  does  not  belong  to  the  master.      This  rule  must  be  rea- 

1  Lumley  v.  Gye,  2  Ell.  &  Bl.  216.  Duulap,  56  N.  H.456;  Morgan  i;.  Smith, 

This  suit  was  with  reference  to  the  en-  77  N.  C.  37.     And  see,  as  to  measure  of 

ticement  of  Wagner,  the  vocalist,  from  damages,  Lee  v.  West,  47  Ga.  311. 
one  theatre  to  another      The  majority  4  Bryan  v.  State,  44  Ga.  328 ;  Rose- 

of  the  court  (Coleridge,  J.,  dissenting)  berry  v.  State,  50  Ala.  160;  89  N.  C. 

thought    the    action    would    lie,    even  553.     The  old  rule  was  that  a  master 

though   the   parties    were   not   strictly  deprived  of  the  services  of  an  appren- 

master  and  servant.     As  to  one  orally  tice  or  servant   by  the  enticement  or 

contracting  to  serve  as  a  farm  laborer,  harboring  of  another  might  sometimes 

see    Daniel    v.    Swearingeii,    6    Rich,  waive  the  tort,  and  sue  for  the  wages 

297.  due  from  the  second  master;  the  maxim 

-  See  Coleridge,  J.,  sujna.     And  see  being,  that  the  acquisition  of  the  ser- 

Ashley  v.  Harrison,  1    Esp.  48.  rant  was  the  acquisition  of  the  master  ; 

3  See  Scidmore  Vt  Smith,  13  Johns,  but  as  Mr.  Smith  has  observed,  this 
322;  Peters  v.  Lord,  18  Conn.  337;  rule  applied  more  strictly  during  the 
Salter  v.  Howard,  43  Ga.  601  ;  Burgess  existence  of  villenage.  See  Smith,  Mast. 
v.  Carpenter,  2  S.  C.  n.  s.  7  ;  Bixby  v.  &  Serv.  80,  81.  Most  of  the  cases  to 
Duulap,  56  N.  H.  456 ;  Haskins  v.  Roy-  sustain  this  principle  relate  to  appren- 
ster,  70  N.  C.  601 ;  Noice  v.  Brown,  39  tices  in  a  seafaring  way ;  but  it  is 
N.  J.  L.  569.  In  general,  a  scienter  thought  to  extend  to  servants  in  gen- 
should  appear;  but  where  the  entice-  eral.  Co.  Litt.  117n,  n. ;  Smith,  supra, 
ment  was  purely  malicious,  greater  and  cases  cited  ;  Lightly  v.  Clouston,  1 
damages    may    be    allowed.     Bixby  v.  Taunt.  112. 

50  785 


§  489  THE    DOMESTIC    RELATIONS.  [PART  VL 

sonably  and  beneficially  applied  according  to  circumstances. 
One  may  become  bound  by  a  contract  for  hiring,  but,  if  not  an 
absolute  slave  (and  such  a  class  our  law  does  not  now  recognize), 
he  may  generally  gain  something  for  himself  otherwise  if  he 
choose.  Thus,  if  one  in  the  service  of  another,  not  employed  to 
invent,  make  an  invention,  the  patent-right  is  his,  and  not  his 
master's.1  And  the  same  rule  applies  to  salvage  money,  the 
result  of  extraordinary  service  on  his  part.2  And  one  may, 
moreover,  stipulate  that  outside  certain  hours  he  shall  have  his 
own  time.3  But  the  master  shall  have  the  advantage  of  his  ser- 
vant's contracts  as  to  matters  within  the  scope  of  the  service;4 
and  wherever  the  products  of  one's  brain  in  a  certain  direction 
are  put  to  the  employer's  service,  under  the  express  or  manifest 
intendment  of  a  contract  of  hiring,  all  patents  or  copyrights 
taken  during  the  stipulated  time  as  incidental  to  such  employ- 
ment belong  in  equity  to  the  master.5 

It  is  held  in  New  Hampshire,  that  if  a  servant,  having  his 
master's  money  for  a  specific  purpose,  make  use  of  it  in  perform- 
ing a  service  which  he,  without  his  master's  privity,  has  under- 
taken for  another,  the  master  cannot,  by  afterwards  adopting  the 
servant's  act  as  his  own,  charge  that  other  party  upon  the  con- 
tract made  by  him  with  the  servant.6  Where  a  master  seeks  to 
recover  money  corruptly  or  unfaithfully  held  back  by  his  servant, 
he  should  not  go  into  equity  as  though  the  servant  were  a  trustee, 
but  sue  as  a  creditor  sues  his  debtor.7 

£  4S9.  Liability  of  Master  upou  Servant's  Contracts;  Servant's 
Agency.  —  Second.  As  to  the  master's  liabilities.  A  master  is 
liable  for  the  contract  of  his  servant,  made  in  the  course  of  his 

1    Bloxam  v.  Elsee,  1  Car.  &  P.  558.  17.      On   a   contract    for    services    for 

Bui  see  Smith,  .Mast.  &  Serv.  82.  fixed  compensation,  the  employer  was 

-  Mason  v.  The  Blaireau,  2  Cranch,  held,  prima  facie,  entitled  to  notary's 

240.  fees  earned    in    the  employment.     86 

:   Wallace  v.  De  Young,  98  111.  638.  Mo.  27. 

1  Damon  i>.  Osborn,  1  Pick.  481.     A         6  49  N.  J.  Oh.  92. 
servant,   who   finds    Lost    property   may  6  Webb  v.  Cole,  20  N.  II.  400.     As 

assert  the  legal  rights  of  Snder  for  his  to  a  master's  right  to    reserve  wages 

own   benefit   against  all   but  the  true  when  served  with  garnishment  or  trus- 

owners,   notwithstanding   the   property  tee   process,   see    Davis  V.  Meredith,  48 

was    found   on    his   master's  premises.  Mo.  263. 

Ilamaler    v.    Blanchard,   90    I'emi.    St.  "    Lister  v.  Stubbs,  45  Ch.  D.  1. 

.377.    See  2  Bchouler,  Pers    Prop.  14- 
78G 


CHAP.  IV.]  RIGHTS,   ETC.,   OF   THE  MASTER.  §  489 

employment  about  his  master's  business.1  Supposing  I  have  a 
servant,  and  that  servant  is  in  the  habit  of  purchasing  the  family 
supplies,  in  the  course  of  his  usual  employment ;  his'  contracts 
for  such  purchases  will  bind  me.  But  is  that  simply  because  he 
is  my  servant  ?  If  his  usual  employment  be  upon  the  farm,  and 
I  never  gave  him  authority  to  make  purchases,  lie  cannot  bind 
me  by  going  to  the  store  merely  because  he  happens  to  be  my 
servant.  So  I  can  authorize  others  to  purchase  family  supplies  : 
it  may  be  my  wife,  or  my  child,  or  any  friend.  In  all  such  cases, 
then,  I  am  bound,  because,  as  is  commonly  said,  I  have  consti- 
tuted another  my  agent,  not  strictly  because  I  have  a  servant. 
No  power,  therefore,  can  be  inferred  from  the  relation  of  master 
and  servant,  it  is  said,  by  which  the  latter  can  bind  the  former.2 
Mr.  Smith  states  the  principle  more  correctly,  when  he  says  that 
the  power  which  a  servant  possesses  of  binding  his  master  by 
contracts  is  founded  upon,  or  rather  is  the  basis  of,  the  general 
law  of  principal  and  agent.3  For,  in  truth,  it  would  seem  tbat 
the  relation  of  master  and  servant  is  the  older  at  the  law.  How- 
ever this  may  be,  the  rule  is  properly  stated,  at  the  present  day, 
to  be  that  the  servant  can  only  bind  his  master  as  his  agent ;  and 
this  on  the  principle,  common  to  both  branches  of  the  law,  that 
the  act  of  the  servant  or  agent  is,  in  fact,  the  act  of  his  master 
or  principal:  the  maxim  being,  Quifacitper  alium facit per  se.4 
The  well-known  rules  of  agency  need  not,  then,  be  set  out 
here  at  any  length.  We  only  observe  that  the  contract  of  a  ser- 
vant, in  order  to  bind  the  master,  must  be  within  the  scope  of 
his  authority ;  that  this  authority  may  be  expressly  conferred,  or 
may  be  implied  from  the  master's  conduct ;  that  subsequent  rati- 
fication of  the  servant's  acts  is  as  binding  as  a  previous  author- 
ity ;  that  the  authority  of  a  servant  is  coextensive  with  his  usual 
employment ;  and  that  the  scope  of  his  authority  is  to  be  meas- 
ured by  the  extent  of  his  employment.5  All  these  principles  the 
reader  will  expect  to  find  much  more  fully  illustrated  in  any 

1  Helyear  v.  Hawke,  5  Esp.  72.  5  See  Story.  Agency,  §§  74,  75  ;  lb. 

2  Moore  v.  Tickle,  3  Dev.  244.  §  239  et  seq. ;  Bird  v.  Brown,  4   Exch. 
8  Smith,  Mast.    &   Serv.    122.      See     798  ;  Smith,  Mast.  &  Serv.  123-126;  Co. 

Bac.  Abr.  tit.  Master  and  Servant  (K).     Lit*.  207  a;    Bac.    Abr.    tit.  Authority 

4  lb.     And  see  Co.  Litt.  52  a;  Story,     (B) ;  2  Kent,  Com.  612  et  seq. 
Agency,  §§  7,  8. 

787 


§  489  THE   DOMESTIC   RELATIONS.  [PAET    VI. 

treatise  upon  agency  than  in  one  which  professes  to  take  up 
simply  the  law  of  the  domestic  relations.  There  may  be  servants 
for  a  variety  of  purposes ;  there  may  be  agents,  too,  for  a  variety 
of  purposes ;  and  between  servant  and  agent  is  as  yet  no  strict 
line  of  legal  demarcation.  In  general,  a  master  is  not  considered 
liable  on  the  contract  of  his  servant,  unless  the  servant,  at  the 
time  he  entered  into  it,  assumed  to  act  as  his  agent.1  But  this 
principle  is  not  artificially  applied,  the  question  of  actual  or 
apparent  intent  prevailing.2 

"Where  a  servant  is  employed  to  transact  business,  and  has  no 
particular  orders  with  reference  to  the  manner  in  which  that 
business  is  to  be  transacted,  he  is  considered  as  invested  with  all 
the  authority  necessary  for  transacting  the  business  intrusted  to 
him  and  which  is  usually  intrusted  to  agents  employed  in  simi- 
lar matters.  In  every  case  such  authority  embraces  the  appro- 
priate means  to  accomplish  the  desired  end.3  Thus,  a  servant 
sent  without  money  to  buy  goods  has  implied  authority  to  pledge 
his  master's  credit.4  And  in  numerous  instances  the  master  has 
been  considered  bound  by  his  servant's  warranty,  that  being  usual 
in  effecting  certain  sales ;  though  not  where  the  warranty  is  sub- 
sequent to  the  sale  and  not  part  of  the  same  transaction  ; 5  for 
the  rule  is  general  that  acts  and  admissions  by  the  servant  out  of 
the  course  of  his  employment  will  not  bind  the  master.6  If  the 
master  intends  limiting  his  responsibility  for  the  servant's  acts 
performed  in  the  usual  scope  of  employment,  he  should  give  due 
notice  to  those  dealing  with  the  servant.7 

There  is  an  important  legal  distinction  between  general  agents 

i  Wilson  v.  Tumman,  6  M.  & G.  236 ;  Alexander  ».  Gibson,  2  Campb.  555; 

4  I  u-t.  317  ;  Walker  v.  Hunter,  2  C.  &  Helyear  v.  Hawke,  5  Esp.  72;  Woodin 

B.  334.  v.  Burford,  2  Cr.  &  M.  391  ;  Saunder- 

-  See    Trueman    v.   Loder,    11    Ad.  son  v.  Bell,  2  Cr.  &  M.  304  ;  and  other 

&   El.  594,   595  ;  Smith,  Mast.  &  Rerv.  cases  cited  in  Smith,  Mast.  &  Serv.  129, 

132,  130. 

:)  Story,  Agency,  §§  60,85;  Smith,  G  Fairlie  v.  Hastings,  10  Ves.  128; 
Mast.   &    Serv.    128;    Cox  v.   Midland  Story,  Agency,  §  136;  Garth  v.  How- 
Counties  R.  R.  Co.,8  Exch.  278;  How-  ard,  8  Ring.  451. 
ard  v.  Baillie,  2  II.  Bl.  618.  7  As  where  one  intends  that  parties 

*  Tobin    /•.   Crawford,   9    M.  &   W.  dealing  with  his  clerk  or  servant  in  a 

718.     And  *<■'■  Weisger  '■.  Graham,  3  particular  line  of  transactions  should 

Bibb,  313.  'ook  to   the   latter  alone  for  payment. 

Murraj  v.  Mann,  2  Exch.  538;  Pardridgc  v.  La  Tries,  84  111.  51. 

788 


CHAP.   IV.]  RIGHTS,   ETC.,   OF  THE   MASTER.  §  490 

and  special  agents ;  hence  comes  the  rule  that  wherever  a  master 
has  held  out  his  servant  as  his  general  agent,  whether  in  all  kinds 
of  business,  or  in  transacting  all  business  of  a  particular  kind,  the 
master,  in  the  absence  of  contrary  notice,  will  be  bound  by  the 
servant's  act,  if  within  the  scope  of  his  usual  employment,  not- 
withstanding the  servant  has  acted  contrary  to  his  master's 
orders.1  This  is  a  principle  of  frequent  application.2  But  where 
a  servant  is  employed  by  his  master  to  act  for  him  in  a  single 
transaction,  he  must  be  regarded  as  the  special  agent  of  his  mas- 
ter; and  in  sucli  case  it  is  incumbent  upon  every  one  dealing 
with  him,  who  wishes  to  charge  his  master  upon  his  contracts,  to 
inquire  into  the  extent  of  his  authority ;  as,  should  he  exceed  it, 
his  master  will  not  be  bound.3 

Since  the  nature  of  the  usual  employment  of  a  servant  is  the 
measure  of  his  implied  authority,  it  follows  that  this  authority 
can  neither  be  limited  by  the  private  instructions  of  the  master 
nor  controlled  by  any  secret  agreement  between  him  and  his 
servant.  "If  this  could  be  done,"  says  a  recent  writer,  "in 
what  a  perilous  predicament  would  the  world  stand  in  respect  of 
their  dealings  with  persons  who  may  have  secret  communications 
with  their  principal.  There  would  be  an  end  of  all  dealing  but 
with  the  master."  4  But  if  a  third  party  knows  of  private  agree-' 
ments  or  instructions,  he  cannot,  of  course,  charge  the  master 
upon  any  inconsistent  contract ;  for  it  enters  as  an  element  into 
his  own  dealings  with  that  servant.5 

§  490.  Master's  Civil  Liability  to  Others  for  Servant's  Torts. 
—  Hitherto  we  have  spoken  of  the  master's  liability  on  his  ser- 
vant's contracts ;  now  we  come  to  his  civil  liability  for  the  ser- 
vant's torts,  whether  to  third  parties  or  to  the  servant  himself. 
This  subject  receives  at  the  present  day  more  attention  in  the 
courts  than  any  other  topic  of  the  so-called  law  of  master  and 
servant ;  perhaps  more  than  all  the  other  topics  together ;  but 

1  Smith,    Mast.    &    Serv.    132-135;  v.  Evans,  2  Ld.  Raym.  928 ;  "Waters  v. 

Story,  Agency,  §§  126,  127.  Brogden,  1  Y.  &  J.  457. 

s'See  Nickson  v.  Brohan,  10  Mod.  4  Smith, Mast.  &  Serv.  133 ;  10  Mod. 

109;  Rimell  v.  Sampayo,  1   Car.  &  P.  110. 

255  ;    Jordan   v.  Norton,  4  M.  &   W.  5  Howard  v.  Braithwaite,  I  Ves.   & 

155.  B.  209. 


3  Smith,  Mast.  &  Serv.  137  ;  Ward 


789 


§  490  THE   DOMESTIC   KELATIONS.  [PART   VI. 

the  illustrations  so  utterly  transcend  the  relation  of  domestic 
service,  being  borrowed  in  great  part  from  the  analogies  of 
modern  business  corporations  and  servants  in  such  employ,  that 
we  shall  make  no  effort  to  follow  these  doctrines  into  their 
minute  details.  Here  we  find  not  only  the  maxim  qui  facit  per 
alium  facit  per  se  cited  (so  well  applied  to  the  law  of  agency), 
but  that  other,  more  strictly  appropriate  to  the  present  relation, 
respondeat  superior.  The  universal  rule  is  that  whether  the  act 
of  the  servant  be  of  omission  or  commission,  whether  his  negli- 
gence, fraud,  deceit,  or  perhaps  even  wilful  misconduct,  occasion 
the  injury,  so  loug  as  it  be  done  in  the  course  and  scope  of  his 
employment,  his  master  is  responsible  in  damages  to  third  per- 
sons.1 And  it  makes  no  difference  that  the  master  did  not  give 
special  orders ;  that  he  did  not  authorize,  or  even  know,  of  the 
servant's  act  or  neglect ;  for  even  though  he  disapproved  or  for- 
bade it,  so  long  as  the  act  was  done  in  the  course  of  the  servant's 
employment,  he  is  none  the  less  liable.2 

So  far  is  this  doctrine  carried  that  a  master  is  even  held  liable 
for  an  injury  occasioned  by  what  might  to  many  minds  appear 
the  wanton  and  violent  conduct  of  his  servant  in  the  perform- 
ance of  an  act  within  the  scope  of  his  employment,3  We  should 
say,  however,  that  a  proper  analysis  of  the  cases  where  a  master 
is  held  responsible  for  his  servant's  torts  would  show  either  that 
the  servant  was  negligent  within  the  scope  of  his  employment; 
or  else  that  he  displayed  a  wanton  or  reckless  purpose  to  accom- 
plish his  master's  employment  in  a  wrongful  manner;4  for  if  he 
wilfully  gratified  his  own  malice  under  the  pretext  of  serving 
his  master,  he  alone  should  be  answerable  for  his  violence. 

1  Story,  Agency,  §  452  ;  Smith,  threw  him  upon  the  ground,  so  that  he 
Mast.    &   Serv.    151,    152;    Shearin.    &     was  seriously  injured,  it  was  held  that 

Negligence,  65.  the  proprietor  was  liahle.     Seymour  v. 

2  Smith,  Hi.  A  principal  may  he  Greenwood,  7  Hurl.  &  Nor.  355.  And 
answerable  where  he  has  received  the  for  a  servant's  assault  in  the  bona  fide 
benefit  of  his  agent's  fraud  committed  performance  of  the  service,  the  master, 
within  t  lie  scope  of  authority.  Mackay  though  in  no  manner  consenting  or 
.  '  ommerciaJ  Bank,  L.  R.  5  P.  C.410.  aiding,  has  been  held  liahle.  Wade  v. 
Cf.  Church  v.  Mansfield,  20  Conn.  284.  Thayer,  40  Cal.  578. 

•    I  hat,  where  the  conductor  of  an  *  See  Howe  v.  Newmarch,  12  Allen, 

omnibus,  in   removing  therefrom  a  pas-  49;  Cohen  v.  Dry   Dock.  R.,  69  N.  Y. 

;er  whom  he  deemed  to  be  intoxi-  170;  Rounds  v.  Delaware  R.,  64  N.  Y 

cated,   forcibly  dragged    him  out  and  129,  per  Andrews,  J. 

7'JO 


CHAP.  IV.]  EIGHTS,    ETC.,    OF   THE    MASTER. 


§490 


Whether  an  act  amounts  to  negligence,  misfeasance,  and  the 
like  is  to  be  determined  in  each  case  by  its  own  circumstances.1 
The  injury  occasioned  may  be  to  person  or  property.2 

A  master  is  liable,  though  the  act  of  the  servant  was  not 
necessary  for  the  proper  performance  of  his  master's  orders, 
or  was  really  contrary  thereto;  so  long  as  the  servant  was  acting 
in  substantial  execution  of  his  master's  orders.3  Perhaps  this 
may  not  readily  be  understood.  But  take  the  common  instance 
of  negligent  driving;  where,  we  shall  suppose,  a  coachman  or 
driver,  or  some  member  of  the  paternal  household,  injudiciously 
or  recklessly,  or  even  intentionally,  but  not  wantonly,  turns  or 


1  See  Crofts  v.  Waterhouse,  3  Bing. 
319. 

2  But  among  the  many  instances 
which  have  been  considered  as  falling 
within  the  rule  are  these  :  Negligent 
driving  by  a  servant.  Michael  v.  Ales- 
tree,  2  Lev.  172;  Jones  v.  Hart,  2  Salk. 
441.  Though  not  inevitable  accident 
without  fault.  Hohnes  v.  Mather,  L.  R. 
10  Ex.  261.  The  negligent  kindling  of 
a  fire.  Filliter  v.  Phippard,  11  Q.  B. 
347.  This  principle  is  frequently  ap- 
plied to  fires  caused  by  locomotive 
engines.  See  Smith,  Mast.  &  Serv. 
153,  n.  Piling  up  wood  improperly. 
Harlow  v.  Ilumiston,  6  Cow.  189.  Mis- 
management of  a  boat,  whereby  an- 
other is  injured.  Page  v.  Defrics,  7 
Best  &  S.  137  ;  Huzzey  v.  Field,  2  Cr. 
M.  &  R.  432.  Negligent  management 
of  gas  by  a  servant  of  the  gas  com- 
pany. 82  Ky.  432.  Negligence  in 
leaving  a  cellar  hole  open.  76  Me. 
100.  Fraud  committed  in  the  course 
of  the  servant's  employment,  accord- 
ing to  some  authorities.  Story,  Agency, 
§  264  ;  Southern  v.  How,  Cro.  Jac  471. 
Mistaken  arrest  under  certain  circum- 
stances. Moore  v.  Metropolitan  R.  P. 
Co.,  L.  R.  8  Q.  B.  36.  But  see  Allen 
v.  London,  &c.  R.  R.  Co.,  L.  R.  6  Q.  B. 
65.  Infringement  of  a  patent  by  work- 
men. Betts  v.  He  Vitre,  L.  R.  3  Ch. 
429.  Unskilful  workmanship.  Gil- 
martin  v.  New  York,  55  Barb.  239.  If 
the  owner  of  a  dog  appoints  a  servant 
to  keep  it,  the  servant's  knowledge  of 


the  dog's  ferocity  is  the  knowledge  of 
the  master.  Baldwin  v.  Casella,  L.  K. 
7  Ex.  325.  The  rule  may  apply  like- 
wise where  a  servant  leaves  1 1 1  *  -  bars 
down,  or  a  gate  or  door  negligently 
open.  See  Chapman  v.  New  York,  &c. 
P.  P.  Co.  33  N.  Y.  369.  Or  throws  his 
master's  things  out  of  a  window  care- 
lessly upon  a  passer-by.  Corrigau  ?•. 
Union  Sugar  Refinery,  98  Mass.  577. 
Cf  139  Mass.  556;  105  Penn.  St.  169. 
And  it  is  to  be  observed  that  the  mas- 
ter's responsibility  is  not  confined  to 
those  who  work  under  his  immediate 
supervision,  but  extends  to  all  others 
whom  he  selects  to  do  any  work  or 
superintend  any  business  for  him.  Rex 
r.  Koseason,  14  East,  605;  Laughter  v. 
Pointer,  5  B.  &  C  554;  Wayland  v. 
Elkins,  1  Stark.  272.  As  if  lie  should 
employ  a  bailiff,  steward,  or  superin- 
tendent. How  far  this  principle  might 
be  extended,  it  is  useless  to  speculate. 

Where  the  injury  was  the  combined 
carelessness  of  master  and  servant,  the 
master  ought  the  more  to  be  held 
liable.  Tuel  V.  Weston.  47  Vt.  634. 
But  unless  the  master  was  more  than 
ordinarily  careless,  and  chargeable  in 
fact  with  gross  misconduct,  he  ought 
not  to  be  held  liable  for  punitory  dam- 
ages, but  only  so  as  to  compensate  the 
party  injured.  Cleghorn  v.  N.  Y.  Cen- 
tral R.,  56  N.  Y.  44 ;  Ilawes  v.  Knowles, 
114  Mass.  518. 

3  Smith,  Mast.  &  Serv.  157. 

791 


§491 


THE   DOMESTIC    RELATIONS. 


[PART  VI. 


races  bis  horses  so  as  to  run  down  another's  carriage.1  Unless 
the  rule  of  liability  were  carried  to  such  an  extent,  we  should 
find  masters  constantly  escaping  the  consequences  of  their  ser- 
vant's behavior. 

§  491.  The  Same  Subject;  Limitations  of  Rule.  —  But  a 
master  is  not  responsible  for  any  act  or  omission  of  his  servants 
which  is  not  connected  with  the  business  in  which  they  serve 
him,  and  does  not  happen  in  the  course  or  the  scope  of  their 
employment.2  Beyond  the  scope  of  his  authority,  the  servant 
is  as  much  a  stranger  as  any  other  person.  Thus,  where  a  ser- 
vant is  employed  only  to  harrow  one  field  and  watch  a  fire  in 
another,  and  he  undertakes  besides  to  burn  a  pile  of  rubbish.3 
So,  where  one,  who  is  authorized  to  distrain  cattle  trespassing 
on  his  master's  land,  drives  the  horses  of  a  neighbor  on  to  the 
land  and  then  distrains  them.4  Or  where  the  servant  is  driving 
his  master's  team,  not  in  the  master's  business,  but  in  the  ser- 
vant's own  private  or  unpermitted  business.5  Or  where  one 
perforins  a  task  outside  of  his  ordinary  and  proper  employment, 
or  turns  aside  from  a  journey  in  which  he  was  employed,  to 
take  a  different  one,  and  thereby  commits  the  injury.6    Or  where 


1  Croft  t\  Alison,  4  B.  &  Aid.  590 ; 
Joel  v.  Morrison,  6  Car.  &  P.  501  ; 
Sleath  v.  Wilson,  9  Car.  &  P.  607.  And 
see  Illidge  v.  Goodwin,  5  Car.  &  P.  190 ; 
McDonald  v.  Snelling,  14  Allen,  290.  So 
with  one  of  a  father's  family  who  may 
be  deemed  his  servant.  Kehaefer  v.  Os- 
terbrink,  67  Wis.  495.  .  I  liter,  as  to  a  run- 
away horse,  where  the  driver  is  not  care- 
less. Holmes  v. Mather,  L.  11. 10  Ex  261. 

2  Smith,  Mast.  &  Serv.  160  ;  Shaw 
v.  Reed,  9  W.  &  S.  72;  Harriss  v. 
Mabry,  1   Ired.  240;  Lowell  v.  Boston 

Lowell     R.    R.    Co.,   23    Tick.    24; 
Shearm.  &  Redf.  Negligence,  69 ;  Foster 
Bank,  17  Mass.  500  ;  Brown  v. 
Purviance,  2   liar,  ami  (Jill,  316. 

:;  Wilson  v.  Peverly,  ii  N.  II  548. 
And  see  Oxford  v.  Peter,  28  111.  434. 

1    Lyons  V.  Martin,  8  A.I.  &  El.  512; 

<  roodman  <■.  Kennell,  ■''.  I  !ar.  &  P.  167 ; 

Lamb  w.   Ladj  Palk,  9  Car.  &  P.  629; 

M'Ken/ie    v.  McLeod,  10    Bing.  385; 

Oxford  v   Peter,  28  111.  434. 

702 


5  26  Fed.  R.  912;  Way  v.  Powers, 
57  Vt.  135. 

6  Storey  v.  Ashton,  L.  R.  4  Q.  B. 
476  ;  Rayner  v.  Mitchell,  2  C.  P.  D. 
357  ;  Sheridan  v.  Charlick,  4  Daly, 
338  ;  Cavanaugh  v.  Dinsmore,  19  N.  Y. 
Supr.  465  ;  Stone  v.  Hills,  45  Conn.  44. 
See  also  Schouler,  Bailm.  135,  for  the 
application  of  this  doctrine  to  the  hirer 
of  a  horse.  Allegation  of  malicious 
assault  and  battery  by  a  servant  does  not 
state  a  just  cause  of  action  against  the 
master.  140  Mass.  327.  Nor  of  a  ser- 
vant's cruelty  to  an  animal  without  the 
presence,  order,  or  direction  of  the  mas- 
ter. 47  N.  J.  L.  237.  But  as  to  injury 
done  by  a  horse,  whose  master  was  aware 
of  the  servant's  long  habit  of  leaving  the 
animal  unhitched  in  the  street,  see  54 
Mich  73.  The  distinction  of  the  text 
is  applied  to  ejection  from  a  passenger 
ear  by  a  railroad  conductor.  Schouler, 
Bailm.  §  658. 


CHAP.  IV.]  EIGHTS,    ETC.,    OF   THE    MASTEE.  §  492 

a  servant  in  his  excessive  zeal  and  without  any  authority  pro- 
cures the  arrest  of  some  third  party  and  his  false  imprisonment.1 
The  distinction  in  such  cases  is  not  always  clear,  as  their 
examination  will  show  ;  but  we  should  hardly  expect  to  see  the 
rule  of  respondeat  superior  applied  where  a  wrong  is  done  wholly 
for  one's  own  purpose  and  in  his  own  concerns,  disconnected 
from  the  employment  of  the  master  in  question.2 

It  has  been  ruled  that  a  servant  could  have  no  implied 
authority  to  do  that  which  it  would  not  be  lawful,  under  any 
circumstances,  fur  either  him  or  his  employer  to  do.3  Nor,  on 
general  principles,  is  the  master  liable  if  the  person  injured  was 
not  in  the  exercise  of  ordinary  care  at  the  time  of  the  injury,  and 
so  aided  in  effect  in  bringing  on  his  suffering.4  Many  decisions 
indicate  the  doctrine  that  for  wilful  acts  of  the  servant  the 
master  is  not  responsible ;  but  this  exemption  usually  seems  to 
rest  in  reality  upon  the  ground  that  the  acts  complained  of  were 
not  clone  in  the  course  and  scope  of  the  servant's  employment.5 
To  apply  these  and  analogous  rules  is  not  easy.  After  all,  the 
principle  of  scope  of  the  servant's  employment  seems  most  often 
to  explain  the  extent  of  the  master's  liability  for  his  tort ;  and  the 
American  cases  appear  to  have  brought  it  to  bear,  whatever  the 
nature  of  the  injury,  and  however  difficult  it  might  sometimes 
be  found  to  apply  the  principle  understandingly  to  a  particular 
state  of  facts.6 

§  492.  Master's  Responsibility  for  Tort  to  his  own  Servants  ; 
Exception  as  to  Fellow-Servants,  &c.  —  In  contrast  with  the 
master's  responsibility  to  others  for  the  acts  of  his  servant  is 
the  rule,  now  well  settled  in  England  and  America,  that  a 
master  is  not  in  general  responsible  to  his  own  servant  for 
any  injury  which  the   latter  may  sustain    through   the   negli- 

1  [1891],  1  Q.  B.  516.  Illinois  C.  R.  K.  Co.  v.  Baches,  55  111. 

2  Stevens   v.    Armstrong,    6    N.    Y.  379. 

435;    Yates    v.    Squires,  19  Iowa,   26;  5  See  Shearm.  &  Redf.  Negligence, 

Little  Miami  R.  R.  Co.  v.  Wetmore,  19  73;  Harris  v.   Nicholas,  5   Muuf.  483; 

OhioSt.110.  Moore     v.    Sanhorne,     2     Mich.    519; 

3  Poulton   v.    South-Western  R,  R.  Wright  v.  Wilcox.  19  Wend.  343. 

Co.,  L.  R.  2  Q.  B.  534.     See  Russell  v.         6  See  further,  Shearm.  &  Redf.  Neg- 

Irby,  13  Ala.  131.  Jigence,  72  ;  Mott  v.  Consumers'  Ice  Co., 

*  Smith,  Mast.    &  Serv.    161  ;    But-  73  N.  Y.  543;  Snyder  v.  Hannibal  R, 

terfiell     v.    Forrester,    11     East,    60;  60  Mo.  413- 

793 


§492 


THE   DOMESTIC   RELATIONS. 


[PART  VI. 


gence  or  wrongful  act  of  a  fellow-servant,  unless  the  master  has 
been  negligent  in  his  selection  or  retention  of  the  servant  at 
fault.1  The  application  of  this  rule  is  usually  to  railway  com- 
panies and  other  common  carriers,  riot  often  to  domestic  ser- 
vants ;  but  all  who  occupy  the  relation  of  master  and  servant 
come  within  its  scope.2  The  converse  of  our  rule  holds  good ; 
namely,  that  the  master  is  responsible  for  the  injury  sustained 
by  a  servant  through  the  negligence  or  misconduct  of  a  fellow- 
servant,  as  for  an  injury  committed  by  himself,  where  he  was 
negligent  in  selecting  the  fellow-servant,  or  in  continuing  him 
in  employment  after  that  fellow-servant  proved  incompetent.3 

v.  Erie  R.  R,  Co.,  49  Barb.  324  ;  Shearm. 
&  Redf.  Negligence,  115;  Feltham  v. 
England,  L.  R.  2  Q.  B.  33 ;  Wigmore 
v.  Jay,  5  Exch.  354 ;  Shanck  v.  North- 
ern, &c.  R.  R.  Co.,  25  Md.  462 ;  Mur- 
ray v.  Currie,  L.  R.  6  C.  P.  24 ;  Mc- 
Andrews  v.  Burns,  39  N.  J.  L.  117. 
Though  where  the  superior  servant's 
direction  was  outside  his  own  scope  of 
authority,  other  considerations  apply. 
Railroad  Co.  v.  Fort,  17  Wall.  553. 
But  in  some  States  this  rule  of  a  supe- 
rior "  fellow-servant "  appears  to  be 
relaxed  somewhat  for  the  injured  ser- 
vant's benefit.  Louisville  &  Nashville 
R,  R.  Co.  v.  Collins,  2  Duv.  114;  Little 
Miami  R.  R.  Co.  v.  Stevens,  20  Ohio, 
415;  86  Mo.  221  ;  23  S.  C.  526;  33 
Min.  311.  A  master  who  injures  his 
own  servant  cannot  claim  immunity  as 
a  "  fellow-servant,"  though  joining  in 
the  work.  Ashworth  v.  Stanwix,  3  El. 
&  El.  701  ;  Wilson  v.  Merry,  L.  R.  1 
Sc.  App.  326.  Of  course,  the  mere 
fact  that  two  persons  are  engaged  in 
ministering  to  the  wants  of  one  indi- 
vidual does  not  make  them  necessarily 
fellow-servants. 

Where  one  takes  the  master's  own 
place  and  supervision,  as  "  vice-prin- 
cipal," so  to  speak,  ln's  negligence  lias 
been  doomed,  in  various  late  instances, 
the  negligence  of  the  master  rather 
than  that  of  a  fellow-servant ;  as  if 
<»io  should  be  appointed  with  a  super- 
intending control  of  the  work,  and 
with  power   to  employ   and  discharge 


i  Smith,  Mast.  &  Serv.  187  ;  Priest- 
lev  v.  Fowler,  3  M.  &  W.  1 ;  Hutchinson 
v."  York,  &c.  R.  R.  Co.,  5  Exch.  343  ; 
Farwell  v.  Boston  &  Worcester  R.  R. 
Co.,  4  Met.  49  ;  Bartonshill  Coal  Co.  v. 
Reid,  3  Macq.  H.  L.  266  ;  Abram  v. 
Reynolds,  5  Hurl.  &  Nor.  143;  Shearm. 
&  Redf.  Negligence,  101,  and  cases 
cited  ;  Sherman  v.  Rochester  R.  R.  Co., 
17  N.  Y.  153  ;  Chapman  v.  Erie  R.,  55 
N.  Y.  579. 

2  See  Wilson  v.  Merry,  L.  R.  1  Sc. 
App  326;  Felch  v.  Allen,  98  Mass. 
572 ;  Durgin  v.  Munson,  9  Allen,  396  ; 
Hoben  v.  Burlington,  &c.  R.  R.  Co.,  20 
Iowa,  562. 

3  Weger  v.  Penn.  R.  R.  Co.,  55  Penn. 
St.  460;  McMahon  v.  Davidson,  12 
Minn.  357  ;  Coppins  v.  N.  Y.  Central 
R.,  122  N.  Y.  557.  See  Chicago,  &c. 
R.  R.  Co.  v.  Jackson,  55  111.  492.  Where 
the  injury  to  an  inferior  servant  was 
caused  by  the  negligence  of  a  superior 
servant,  placed  in  some  sort  of  charge 
by  the  common  master,  this  rule  ap- 
plies as  well  as  though  they  were  equal 
and  performing  the  same  work.  Berea 
Stone  Co.  v.  Kraft,  31  Ohio  St.  287; 
Lehigh  Valley  Co.  v.  Jones,  86  Penn. 
St.  432;  Howells  v.  Landore  Steel  Co., 
L.  B.  10  <i-  B.  62.  In  fact,  a  "fellow- 
servant,"  within  the  meaning  of  the 
rule  of  our  text,  is  usually  understood 
to  he  any  one  Berving  the  same  master, 
and    under   liis   control,  whether   equal, 

inferior,  or  superior  to  the  injured  jht- 
sou  in  bis  grade  or  standing.    Faulkner 
704 


CHAP.  IV.]  EIGHTS,   ETC.,   OF   THE   MASTEE.  §  492 

It  might  be  a  question  whether  the  master  is  not  in  such  latter 
cases  held  responsible,  as  substantially  a  party  whose  negli- 
gence caused  or  contributed  to  the  injury ;  if  so,  this  principle 
could  be  pushed  still  further.1 

So  it  is  held  on  like  grounds,  irrespective  of  the  question  of 
fellow-servants,  that  a  master  is  not  liable  to  his  servant  for 
any  defects  in  the  materials  furnished  to  the  latter  for  use  in 
the  master's  service,  unless  he  was  negligent  in  providing  such 
materials  or  in  pointing  out  their  defects.2  Nor  for  injuries 
caused  his  servant  by  latent  defects  in  the  structures  of  em- 
ployment where  he  had  appointed  suitable  inspectors  who 
failed  to  discover  and  report  them,  and  he  received  no  other 
information  that  the  defects  in  fact  existed.3  In  short,  ordinary 
and  reasonable  care  and  diligence  on  his  part  will  protect  the 
master  from  liability  to  his  own  servants ;  and  ordinary  care  is 
usually  presumed  to  exist  in  absence  of  proof  to  the  contrar}7.4 
But  for  his  own  culpable  negligence,  on  the  other  hand,  a  master 
is  liable  to  his  own  servant  as  to  any  one  else ;  that  is  to  say} 
provided  the  servant  on  his  part  exercised  ordinary  care,6  and 

hands,  and  to  direct  and  control  their  i>.   Jackson,   55   111.   492 ;   Paulmier  v. 

movements.     Stephens  v.  Hannibal  R.,  Erie  R.  R.  Co.,  34  N.J.  L.  151.    Where 

86   Mo.  221  ;  67    Wis.  24  ;  23  Fed.  R.  the  master  employs  persons  who  are  to 

363.     But  cf.  Reese  v  Biddle,  112  Penn.  furnish   each   his   own   tools  or  appli- 

St.  72;  Conley  v.  Portland,  78  Me.  217.  ances,  he  is  not  answerable  for  defects 

Indeed,  in  various  States  the  latest  de-  in   such  tools  or   appliances.     Harkins 

cisions  show  a  disposition  to  favor  the  v.  Sugar  Refinery,  122  Mass.  400.     But 

injured  servant,  by  denying   that   ser-  a  master  is  responsible  for  an  accident 

vants  of  a  corporation  who  are  engaged  who  furnishes  a  defective  and  danger- 

in  various  deoartments  of   a  complex  ous  appliance,  by  reason  of  which  the 

and  extensive  business  should  be  classed  injury  occurred,  even  though  a  fellow- 

as   "  fellow-servants "    in    the    present  servant's  negligence  contributed  to  the 

sense.     And  see   Chicago  R.  v.    Ross,  injury.     100  X.  Y.  516.     These  princi- 

112  U.  S.  377,  where  a  railroad  conduc-  pies  are  applied  in  a  number  of  railway 

tor  was  treated  as  a  sort  of  "  vice-prin-  and  other  cases  which  a  treatise  like  the 

cipal  "  with  reference  to  the  engineer  present  cannot  well  enumerate, 
and  other  train  servants.     See  author-         *  Shearm.   &  Redf.  104;  Roberts  v. 

ities  here  examined ;  23  Q.  B.  D.  508.  Smith,   2   Hurl.   &   Xor.  213;   Brydon 

1  See  Davis  v.  Detroit,  &c  R.  R.  v.  Stewart,  2  Macq.  H.  L.  30 ;  Cayzer  v. 
Co.,  20  Mich.  105.  Taylor,   10    Gray,   274;    Ashworth   v. 

2  Shearm.  &  Redf.  Negligence,  103,  Stanwix,  3  El.  &  El.  701  ;  Johnson 
and  cases  cited;  Hayden  v.  Smithville,  v  Bruner,  61  Penn.  St.  58;  Probst  v. 
&c.  Co.,  29  Conn.  548.  Delamater,  100  N.  Y.  266  ;  27  W.  Va. 

8  Warner  v.  Erie  R.  R.  Co.,  39  N.  Y.    285. 
468.    But  see  Chicago,  &c.  R.  R.  Co.         5  Chicago  R.  v.  Donahue,  75  111.  106. 

795 


§492 


THE   DOMESTIC    RELATIONS. 


[PART  VI. 


not  otherwise.  Though  not  a  guarantor,1  it  is  incumbent  upon 
the  master  to  use  ordinary  and  reasonable  care  in  selection  of 
servants,2  and  in  the  procurement  of  materials,  and  in  keeping 
the  premises  of  usual  employment  in  repair  and  safe  condition,3 
and  in  remedying  defects  which  are  brought  to  his  notice.4  But 
a  master  does  not  insure  his  servant  against  accidents,5  nor  as 
against  the  servant's  own  risks  or  carelessness.  Peculiar  terms 
of  the  employment  have  a  bearing  upon  such  issues;6  and  in 
domestic  or  household  service,  where  the  risk  of  personal  injury 
is  small,  the  master  should  not  be  held  very  rigidly  account- 
able for  primitive  implements  used  about  the  house  ;  especially 
as  there  are  certain  risks  of  all  employment,  which  the  servant 
who  can  appreciate  them  is  supposed  to  take  upon  himself.7 


i  Hough  17.  Texas  R.,  100  U.  S.  213. 
As  to  facts  which  constitute  contribu- 
tory negligence  on  the  servant's  part, 
see  123  U.  S.  710. 

2  Gilman  v.  Eastern  R.  R.  Co.,  10 
Allen,  233  ;  Faulkner  v.  Erie  R.  R.  Co., 
49  Barb.  324  ;  Moss  v.  Pacific  R.  R.  Co., 
49  Mo.  1G7.  The  English  statement  of 
the  rule  is  that  "  negligence  cannot  ex- 
ist if  the  master  does  his  best  to  employ 
competent  persons ;  he  cannot  warrant 
the  competency  of  his  servants."  Tar- 
rant v.  Webb,  25  Law  J.  n.  s.  C.  P. 
263.  The  master  cannot  delegate  his 
responsibility  so  as  to  divest  himself  of 
the  necessity  of  using  ordinary  care. 
See  Fuller  v.  Jewett,  80  N.  Y.  46; 
Mitchell  v.  Robinson,  80  Ind.  281.  In- 
toxication of  the  fellow-servant  when 
the  injury  occurred  may  be  shown. 
100  N.  Y.  266  ;  85  Mo.  95.  But  the 
burden  of  showing  the  master  at  fault 
is  on  the  injured  party.  114  111.  244; 
44  Ark.  52. 

:;  Ryan  V.  Fowler,  24  N.  Y.  410; 
Williams  v.  (  Hough,  3  Hurl.  &  Nor.  258  ; 
Buzzell  <■■  Laconia,  &c  Co.,  48  Me. 
113;  Allerton  Parking  Co.  v.  Egan, 
86  111.  253;  Fairbank  v.  Haentzsche, 
73  111.  236;  137  Mass.  204;  99  Ind. 
188. 

♦  Perry  v.  Ricketts,  55  111.234.  And 
this   liability    for    his   own   negligence 

796 


would  appear  to  apply  iu  some  cases 
where  a  fellow-servant  contributed  to 
the  injury.  Paulmier  v.  Erie  R.  R.  Co., 
34  N.  J.  L.  151. 

5  Flynn  v.  Beebe,  98  Mass.  575,  per 
Hoar,  J.  See  also  Marshall  v.  Stew- 
art, 2  Macq.  Ho.  Lords,  30,  33,  E.  L.  & 
Eq.  1. 

6  Where  the  servant  knows  his  mas- 
ter's rules  and  violates  them,  it  is  held 
that  he  must  suffer  the  consequences ; 
for  of  the  reasonableness  of  the  rule  his 
master  must  be  the  sole  judge.  Wol- 
sey  v.  Lake  Shore  R.,  33  Ohio  St.  227. 
It  seems  to  the  present  writer,  how- 
ever, that  if  the  servant  showed  that 
he  exercised  ordinary  care  he  ought 
to  recover,  though  even  in  the  act  of 
transgressing  an  unreasonable  rule  of 
his  employer.  See  dissenting  opinions 
iu  Wolsey  v.  Lake  Shore  R.,  supra.  As 
to  warning  a  child  or  inexperienced 
person  against  the  dangers  of  the  task 
committed  to  him,  those  latent  but  not 
those  patent,  see  Sullivan  v.  India  Man. 
Co.,  1 13  Mass.  396  ;  O'Connor  v.  Adams, 
120  Mass.  427  ;  Hill  v.  Gust,  55  Ind.  45  ; 
39  Ark.  17. 

7  As  in  falling  down  a  ladder  or  a 
flight  of  stairs.  The  questions  of  a 
master's  negligence,  of  a  servant's  con- 
tributory carelessness,  and  of  the  ser- 
vant's assumption  of  certain  risks,  under 


CHAP.  IV.]  RIGHTS,   ETC.,   OF   THE   MASTER.  §  403 

The  rule  that  a  master  is  not  responsible  to  one  servant  foi 
the  negligence  of  a  fellow-servant  [applies  to  the  case  of  a  person 
who  is  injured  while  voluntarily  assisting  the  servant.  A  guest, 
a  friend,  a  relative,  any  one  engaged  in  the  same  common  work, 
comes  within  the  principle.1  And,  in  general,  where  a  danger 
is  obvious,  it  is  treated  as  incident  to  the  employment.  And 
the  servant  who  is  killed  or  injured  while  encountering  it  must 
be  deemed  to  have  assumed  the  risk.2 

§  493.  Master  not  Criminally  Responsible  for  Servant,  but 
only  for  Himself.  —  As  a  general  rule,  the  master  is  not  crimi- 
nally liable  for  the  acts  of  his  servants,  unless  he  expressly 
command  or  personally  co-operate  in  them.  Each  offender 
against  public  justice  must  answer  for  himself.3  Where  one, 
however,  procures  innocent  agents  to  do  acts  amounting  to  a 
felony,  the  employer,  and  not  the  innocent  agent,  is  held  ac- 
countable ;  for  this  is  his  own  act.4  As  to  penalties,  the  rule 
in  this  country  is  sometimes  understood  to  be  the  same.6  Yet 
penal  actions  in  general  have  more  the  character  of  civil  suits 
than  of  criminal  proceedings ;  and,  under  the  revenue  laws, 
penalties  are  frequently  imposed  upon  the  master.6  So,  again, 
have  masters  been  indicted  for  public  nuisances  committed  by 

the  circumstauces  of  a  particular  case,  333  ;    Tuttle  v.  Detroit    R.,   122  U.  S. 

are  all  usually  for  submission  to  the  1S9.     Where  a  master  orders  his  inex- 

jury.     Mahoney  v.  Dore,  155  Mass.  513;  perienced  servaut  to  do  some  uuusual 

Steiuhauser  v.  Spraul  (1894),  Mo.  work  of   a   dangerous   kind,   not   well 

1  Degg  v.  Midland  R.  R.  Co.,40E.  L.  understood  by  the  servant,  he  owes  the 

&  Eq.  370;  Potter  v.  Faulkner,  1  Best  latter  a  warning,  or  instruction,  besides 

&   Smith,   800 ;  Althorf  v.   Wolfe,  22  furnishing     suitable     appliances ;     but 

N.  Y.  355 ;    Abraham   v.   Reynolds,   5  otherwise  if  the  danger  is  obvious,  and 

Hurl.  &  Nor.  143  ;  Ohio,  &c.  R  R.  Co.  v.  the  servant  voluntarily  takes  the  risk. 

Hammersley,  28  Ind.  371 ;    Stewart  v.  105  Ind.  151 ;  Tuttle  v.  Detroit  R.,  122 

Harvard  College,  12  Allen,  58;  Wash-  U.  S.  189.     And  a  servant  may  do  such 

hum   v.   Nashville,   &c.    R     R.    Co.,  3  work  reluctantly  and   yet   voluntarily. 

Head,  638.     For  the  case  where  a  ser-  139  Mass.  580. 

vant,  not  authorized  to  do  so,  gets  an-  8  Smith,  Mast.  &  Serv.  143  ;  Story, 

other   to   help   him    in    his   work,    see  Agency,  §  452  ;  Rex  v.  Huggins,  2  Ld. 

Jewell  v.  Grand  Trunk  R.,  55  N.  H.  84.  Raym.  1574  ;  Sloan  v.  State,  8  Ind.  312. 

3  A  servaut  not  apparently  unfit  for  4  Keg.  v.  Bleasdale,  2  Car.  &  K.  166. 

hazardous  duties,  and  accepting  such  an  5  Deerfield  v.  Delano,  1   Pick.  465; 

employment,  takes   upon    himself   the  Goodhue  v.  Dix,  2  Gray,  181. 

natural  risks  of   that   service.      Howd  6  See   Smith,   Mast.    &    Serv.    145- 

v.    Miss.    Central    R.,   50    Miss.    178;  147  ;  Attorney-General  v.  Riddon,  1  Cr 

Gibson    v.    Erie    R.,    63    N.    Y.    449;  &  J.  220;  Atcheson  v.  Everitt,  Cowp. 

Pennsylvania     R.    v.    Lynch,    90    111.  391. 

797 


§494 


THE   DOMESTIC    RELATIONS. 


[  PART  VI. 


their  servants,1  according  to  the  English  rule ;  though  modern 
cases  disfavor  such  a.  conviction.2  Some  of  the  proceedings 
authorized  by  statute  against  corporations  in  this  country  for 
damages  caused  by  the  negligence  of  their  servants  will  be  found 
to  contain  a  like  principle.3 

§  494.  Final  Observations  on  Law  of  Domestic  Servants.  — . 
The  foregoing  brief  statement  of  doctrines  concerning  the  law 
of  master  and  servant  may  suffice  for  the  present  treatise  in  its 
limited  space  and  scope.  To  enter  upon  the  law  further,  or  to 
attempt  in  these  pages  an  analysis  of  the  numerous  and  conflict- 
ing cases  which  constantly  arise  at  the  present  day  under  what 
might  be  called  the  analogies  of  master  and  servant,  would  be 
at  present  impossible.  We  trust  in  time  to  see  the  topic  of 
"  master  and  servant "  confined  to  its  legitimate  and  proper 
limits,  as  one  of  the  domestic  relations,  and  some  new  and  more 
comprehensive  title  applied  to  such  decisions  as  clearly  affect 
mankind  in  the  external  concerns  of  life. 


1  1  Bl.  Com.  431,432;  Turberville  v. 
Stampe,  1  Ld.  Raym.  264. 

2  22  Q.  B.  D.  736. 

3  For  further  discussion  of  the  broad 
principles  underlying  a  master's  liabil- 
ity for  the  negligence  of  his  servants, 
as  illustrated  in  the  modern  English 
and  American  cases,  the  reader  is  re- 

798 


f erred  to  such  general  works  as  Shear- 
man and  Redfield  on  Negligence, 
Story  or  Wharton  on  Agency,  and 
Wood  on  Master  and  Servant.  The 
decisions  which  relate  to  domestic  ser- 
vice constitute  a  very  small  proportion 
of  those  which  properly  belong  to  this 
head. 


INDEX. 


A. 

Section 
ABANDONMENT, 

gives  wife  rights  as  feme  sole 219 

ABDUCTION, 

of  child 260 

ACCOUNTS, 

of  guardian  in  English  chancery  practice 371 

distinction  between  final  and  intermediate  accounts      .     .     .  372 

practice  in  the  United  States 372-374,  388 

items  allowed  the  guardian 374 

compensation  of  guardians 375 

ACTIONS,  —  Husband  and  Wife. 

for  enticement 41 

breach  of  marital  obligations 48 

mutual  disability 52 

on  wife's  antenuptial  debts 57 

with  reference  to  wife's  torts 75-79,  170  n. 

as  to  wife's  separate  estate 158 

as  to  wife's  separate  trade 169 

wife's  modern  right  to  sue,  &c. 170  n. 

where  wife  is  abandoned  by  husband 219 

mutual  right  of  husband  and  wife  to  sue 194  a 

Parent  and  Child. 

parent  for  child's  services 252 

per  quod  for  child's  injuries,  seduction,  &c 257,260 

as  to  illegitimate  children ' 279,  281 

as  between  parent  and  child 275 

Guardian  and  Ward. 

by  or  against  guardian  or  ward  in  general 343  &  n. 

guardians  sued  on  their  bonds 376,  'Ml 

ward's  suit  against  guardian 381 

ward's  action  of  account 3S2 

Infancy. 
suits  must  be  brought  by  guardian  or  prochein  ami   ....     -140 
infants  cannot  sue  by  attorney  or  in  person 449 


800  INDEX. 

Section 

ACTIONS  —  continued, 

how  the  prochein  ami  is  appointed 450 

his  liabilities,  costs,  &c 450 

infants  must  defend  by  guardian  only 451 

guardians  ad  Hem 451 

matters  of  practice 451,  452 

chancery  proceedings  are  similar 452 

binding  effect  of  decree  or  judgment  upon  infant      ....     453 
See  also  Master  and  Servant;  Torts. 

ADHERENCE 35 

See  Husband  and  Wife. 

ADMINISTRATION, 

on  estate  of  deceased  wife 196 

on  estate  of  deceased  husband 204 

See  Death. 

durante  minore  aitate 325 

See  Executor  and  Administrator. 

ADOPTION, 

of  children 232,  273 

ADULTERY, 

effect  on  wife's  necessaries 66 

divorce  for 220  & 

ADVANCEMENT, 

from  parent  to  child 272 

AFFINITY,  , 

marriage  disqualification  of 16 

AGENCY, 

wife's  contract;  necessaries 61 

of  wife  for  husband 60,  72 

of  husband  for  wife  in  separate  property 153-155 

of  wife  after  husband's  death 212 

of  child 241,  446  a 

of  guardians 346 

of  servants 489 

See  Contract. 

ALIENAGE, 

of  either  spouse 39,  222  n. 

ANTENUPTIAL   DEBTS, 

of  wife,  husband's  liability  at  common  law;  liability  only 

while  coverture  lasts 56 

where  wife  was  infant 56 

effect  where  wife  survives  husband 56 

strictly  legal  demands ;  admissions  by  either  spouse      ...       57 

actions;  judgment,  &c 57 

of  antenuptial  contract;  special  contract,  &c 57 

under  separate  use 109,  128 

Statute  changes Ill,  170  n. 

on  death 198,  199 


INDEX. 


801 


Section 

ANTENUPTIAL   SETTLEMENTS 171,  173 

See  Settlements. 

ANTICIPATION, 

clause  of  restraint  upon 110,  129,  139 

See  Separate  Property. 

APPOINTMENT, 

power  of,  in  married  women 136  a 

of  guardians  — 

guardians  of  infants  generally  appointed 297 

but  not  natural  and  socage  guardians;  authority  under  law    .     298 

testamentary  guardians  appointed  by  parent 299 

what  language  suffices  as 299 

extent  of  power  of  appointment  and  authority 300 

whether  infant  can  appoint 301 

rule  as  to  illegitimate  children 282 

chancery  and  probate  guardians  judicially  appointed     .     .     .     302 

what  tribunal  exercises  jurisdiction  and  when 303 

what  person  is  selected  as  guardian 304 

leading  considerations 304,  305 

appointment  of  married  women  and  non-residents     ....     306 

method  of  appointment 307 

effect  of  chancery  or  probate  appointment 308 

civil-law  principles 309 

liability  after  appointment,  before  qualification 326 

APPRENTICE, 

whether  guardian  may  bind  out  ward 335 

legislation  in  England  and  America 457 

mutual  rights  and  duties  of  master  and  apprentice    .     .  457  n.,  487 

ASSAULT   AND   BATTERY, 

of  husband  or  wife 48,  77 

as  to  a  child 262,  263 

as  to  master  and  servant 479 

AVOIDANCE.     See  Infants;  Ratification. 


B. 

BANKRUPTCY, 

in  wife's  separate  trade 163,  169 

as  affecting  voluntary  settlements 186 

BASTARDS 276-282 

See  Illegitimate  Children. 

BIGAMY 21 

BOND,  —  of  guardians, 

English  practice ;  receiver's  duties 365 

American  rule  as  to  probate  and  other  guardians 366 

liability  of  sureties 367 

general  principles  applicable  to  bonds  - 367,  368 

51 


802  INDEX. 

Section 
BOND  —  continued, 

suits  on  probate  bonds 367,  368,  376 

enforcement  of  sureties'  liability 368,  376 

indemnity  of  sureties 368,  376 

special  bond  in  sales  of  real  estate 369 

BURIAL.     See  Death. 


C. 

CHASTISEMENT, 

right  of,  in  a  husband,  parent,  or  master      ....    44,  244,  467 

CHATTELS   REAL   OF   WIFE, 

effect  of  coverture ;  husband's  interest 87,88 

his  right  to  alienate 88 

acts  defeating  wife's  rights 88 

survivorship  of  wife 88 

CHILDREN, 

consent  to  marriage  of 30 

parental  custody  of 47 

custody  of,  under  separation  deed 218  n. 

legitimate  children  in  general 223  et  seq. 

See  Legitimacy. 

agency  of  child  for  necessaries 241 

whether  there  is  implied  authority;  agency 241 

agency  in  general  transactions 241 

liability  for  injuries 262 

duties  of  children  to  parents 264 

extent  of  obligation  to  maintain  ;  Stat.  Eliz.,  &c 265 

rights  of,  in  general 266 

right  of  child  to  his  earnings  ;  emancipation 267 

See  Earnings  ;  Emancipation. 

full-grown  children  remaining  at  home 269 

gifts  and  transactions  between  parent  and  child    .     .     .      270,  271 

advancements  ;  sale  of  expectant  estates  by  heir 272 

legacies  of  children  ;  rights  by  descent  and  distribution     .     .     272 
stepchildren  ;  quasi  relation  of  parent  and  child     237,  239,  261,  273 

claims  against  the  parental  estate 274 

suit  between  child  and  parent 275 

illegitimate  children  (see  Illegitimate  Children)    .     .     .     276 
See  also  Custody;  Infants;  Parent. 

CHOSES, 

of  wife  in  possession  or  action 82 

See  Personal  Property  of  Wife. 

CIVIL   LAW, 

theory  of  marriage  and  property 6 

as  to  separate  trade 170 

as  to  legitimacy 226-229 

as  to  guardianship 292,  309,  358 


INDEX.  803 

Section 

COERCION.     See  Crimes;  Torts. 
COLOR, 

as  marriage  disqualification 17 

COMMUNITY 7 

CONCILIATION,   COUNCILS   OF.     See  Workmen      ....  456 
CONFLICT   OF   LAWS, 

relative  to  marriage,  marital  property  rights,  and  divorce  32  a,  222  n. 

as  to  domicile  of  child 2ol 

as  to  legitimacy 231 

as  to  ward's  person 327,  328 

as  to  ward's  property 329 

as  to  age  of  majority 393 

CONSANGUINITY, 

marriage  disqualification  of 16 

CONSTITUTION, 

questions  as  to  marriage  relation 31,  114 

questions  under,  as  to  legitimacy  and  adoption      .     .     .      229,  232 

as  to  acts  interfering  with  parental  rights  and  duties     .     .     .  256 

as  to  matters  of  guardianship 330 

as  to  master  and  servant 456 

CONTRACT, 

of  wife  under  coverture  or  common-law  doctrine 58 

of  wife,  general  coverture  disability 58 

contracts  void  at  common  law 58 

disability  illustrated 58 

disability  extends  beyond  death  of  spouse  or  divorce      ...  59 

wife  binds  husband  as  agent ;  effect  of  his  assent  or  joinder   ...  60 

wife's  necessaries ;  foundation  of  husband's  obligation  ....  61 

wife  may  pledge  husband's  credit 61 

what  are  such 61 

what  are  not  such 61 

wife 's  necessaries :  (1)  living  together ;  or  (2)  separate      ....  62 

(1)  presumption  from  cohabitation;  husband's  permission  .  63 
wife's  agency  controlled  by  fact  of  husband's  supply  ...  63 
wife's  unauthorized  purchase  may  be  ratified;   assent  and 

dissent 64 

wife's  necessaries  supplied  upon  wife's  or  third  person's  credit  64 

wife's  necessaries  where  husband  neglects  to  supply  ....  65 

(2)  where  spouses  live  apart 66 

wife's  reasons  for  leaving  husband;  return       66 

where  spouses  live  apart  and  wife  commits  adultery  ....  66 

wife's  necessaries;  effect  of  receiving  wife  back 67 

when  spouses  live  apart,  binding  wife  herself     ....  67 

one  spouse  being  in  asylum  or  prison 67 

in  case  of  voluntary  separation;  allowance 68 

legalized  separation,  and  alimony 68 

presumptions  when  spouses  live  apart;  rule  of  good  faith  69 

modern  rule  summed  up 70 


804  INDEX. 

Section 
CONTRACT  —  continued, 

marriage  reputed  or  de  facto 71 

■where  one  spouse  is  a  minor 71 

family  necessaries  ;  children ;  relatives 71 

wife's  necessaries;  parental  claims 71 

wife's  own  claims  for  necessaries;  raising  funds,  &c.     ...       71 
■wife's  necessaries;  leading  elements;  partial  claims       ...       71 

wife's  general  agency  for  her  husband 72 

ratification,  &c 72 

effect  of  creditor's  marriage  with  debtor 73 

changes  under  married  women's  acts 170  n. 

general  transactions  between  husband  and  wife 191 

See  Husband  and  Wife. 

of  wife  after  husband's  death 212 

See  Death. 

transferring  parental  rights 251 

of  guardian  for  his  ward 509 

for  hire  of  servant 458-463 

CONVERSION, 

of  ward's  estate 347,  355 

CONVEYANCE, 

of  wife's  lands 90,  94 

husband's  joinder 133,  150 

from  one  spouse  to  another 192 

to  husband  and  wife;  its  effect 193 

See  Real  Estate  of  Wife. 
COVERTURE, 

general  principles  of  old  law 4-10 

affecting  private  wrongs  and  public  wrongs 49 

general  inequalities  of  old  lata  stated 54 

what  each  spouse  yields  as  to  property 54 

husband's  liability  for  wife's  contracts ;  wife's  immunity  .    .       54 

wife's  immunity,  &c,  as  to  torts ,       54 

when  wife  is  treated  as /ewe  sole 55 

husband  liable  for  wife's  antenuptial  debts 56,  57 

See  Antenuptial  Debts. 

wife's  disability  to  contract 58 

See  Contract. 
effect  upon  wife's  injuries,  and  frauds  committed  upon  or  by 

her 74 

See  Torts. 

effect  upon  wife's  personal  property 80  et  seq. 

See  Personal  Property  of  Wife. 

effect  upon  wife's  chattels  real,  leases,  &c. 87,  88 

See  Chattels  Real  of  Wife. 

effect  upon  wife's  real  estate 89-99 

See  Real  Estate  of  Wife. 


INDEX.  805 

Sbctiox 

CRIMES, 

of  husband  or  wife  ;  coercion,  &c 49 

against  property 51 

of  one  spouse  affecting  the  other ,   170  n. 

of  parent 244 

of  infant 395 

infant  as  criminal  prosecutor;  crimes  against  infants    .     .     .     396 
of  servant 484,  493 

CRIMINAL  INTERCOURSE.     See  Seduction 41 

CRUELTY 44,  220  b,  244 

CURTESY, 

its  nature  and  incidents 201,  202 

CUSTODY, 

of  children,  common-law  rule 47,  245 

mother's  rights  disregarded  at  common  law       ....      245,  333 

chancery  jurisdiction;  common  law  overruled 24G 

on  what  grounds  the  English  chancery  court  interferes       .     .     246 

common-law  courts  interfere  on  habeas  corpus 246  n. 

Justice  Talfourd's  act;  English  rule         247 

doctrine  of  custody  in  the  United  States 248 

child's  welfare  the  primary  object 248 

custody  under  divorce  and  other  statutes 249 

child's  wishes  sometimes  regarded 250 

agreements  to  transfer  custody 251 

guardian's  right  of  custody 332,  333 


D. 
DEATH, 

of  spouse,  effect  on  wife's  antenuptial  debts 56 

as  to  wife's  contract  disability 59 

survival  of  action  for  damages  to  wife 77 

effect  upon  wife's  personal  property 80 

coverture;  effect  on  wife's  chattels  real;  survivorship    ,     .     87,  88 

coverture ;  effect  on  wife's  real  estate 89,  96 

effect  on  wife's  separate  estate        107 

affecting  continuance  of  separate  estate 107,  127 

widowhood  and  remarriage  as  to  separate  use  ....      107,  127 
survivor's  rights  controlled  by  antenuptial  settlement    .     .     183  n. 
dissolution  of  marriage  relation  by:  (1)  husband  as  survivor. 

husband's  common-law  right  to  administer 196 

purposes  of  husband's  administration  ;  assets  for  his  creditors    197 
husband's  survivorship  affecting  wife's  personalty     ....     198 

administration  for  his  own  benefit 198 

husband  bound  to  bury  wife;  his  wishes  respected    ....     199 

husband's  personal  liability  for  deceased  wife's  debts,  &c.     .     199 

death  pending  settlement  of  deceased  wife's  estate     200 

death  of  female  administratrix  leaving  a  husband     ....     200 


806  INDEX. 

Sectiob 
DEATH  —  continued, 

husband's  freehold  by  marriage  in  wife's  real  estate       .     .     .     201 
husband's  enlarged  freehold  as  tenant  by  curtesy      ....     202 

abatement  of  real-estate  suits  by  death 203 

surviving  husband's  claims  against  wife's  real  estate     .     .     .     203 
(2)  wife  as  survivor. 

widow's  rights  of  administration 204 

distributive  share 205 

waiver  of  provision  under  husband's  will     ....     206 

allowance 207 

paraphernalia 208 

wife's  letters  belong  to  her 208  n. 

widow's  equity  of  redemption  of  mortgage 209 

exoneration 209 

controversies  with  administrator 210 

right  and  duty  to  bury  husband 211 

wife's  agency  for  husband  after  his  death 212 

rights  in  deceased  husband's  real  estate 213 

dower  and  curtesy  compared 213 

homestead  system 214 

simultaneous  death  of  husband  and  wife;  ownership  of  fund  214  a 

wills  of  married  women 203   n. 

effect  of  divorce 221,222 

of  minor  child ;  funeral  expenses 242  a 

of  parent;  child's  inheritance 272,277 

of  ward  or  guardian 312,  314 

of  ward's  funeral  expenses 337  n. 

of  master  or  servant 473  a,  474 

DEBT.     See  Antenuptial  Debts:  Contract. 
DESERTION, 

as  a  breach  of  the  duty  of  spouses 36 

as  cause  for  divorce 220  b 

DIVORCE, 

in  connection  with  annulling  marriage 19 

impediments  following 22 

effect  on  wife's  contract  disability 59 

costs,  fees,  &c,  whether  necessaries 61 

as  to  wife's  necessaries 68 

effect  upon  husband's  suit  for  loss  of  wife's  services      ...       77 

effect  upon  wife's  personal  property 80 

effect  on  wife's  real  estate  and  coverture  rights    ....     89,  96 

whether  separation  deed  bars 218  n. 

divorce  legislation  in  general 48,  220 

from  bed  and  board;  from  matrimony 220  a 

causes:  adultery;  cruelty;  desertion;  miscellaneous      .     .      220  b 

effect,  of  absolute  divorce  upon  property  rights 221 

effect  of  partial  divorce  upon  property  rights 222 

conflict  of  laws  iu  divorce 222  n. 

as  to  children 227  a,  237,  239,  364 


INDEX.  807 

Bmboh 

DOMESTIC   RELATIONS, 

defined  and  classified 1»  2 

its  leading  topics         1»  2 

classification  by  other  writers 1 

antiquity  of  the  law 3 

its  supremacy 3 

universal  in  its  scope 3 

See  Husband   and  Wife;   Guardianship;   Master  and   Servant; 
Parent  and  Child. 

DOMICILE, 

assigned  by  law  to  every  one 3 

the  matrimonial 37 

relative  to  alien  and  citizen  marrying 39 

in  conflict  of  laws 222  n. 

of  children 230 

guardian's  right  to  change  it 331 

See  Conflict  of  Laws. 

DOWER, 

its  nature  and  incidents        213 

guardian  may  assign  ward's  dower 350 

DRUNKENNESS  (or  INTOXICATION), 

marriage  disqualification  of 18 

as  a  cause  of  divorce        220  b 


E 
EARNINGS, 

of  wife  at  common  law 81 

under  modern  equity  and  statutes 162 

rule  with  statutory  changes 162 

apart  from  statute 162 

gift  of,  in  wife's  favor 162 

where  husband  deserts  or  neglects 162 

of  minor  children  belong  to  parent 252 

the  rule  limited  in  practice 252  a 

parent  may  sue  for  earnings 252 

may  relinquish  right 252  a 

prize-money,  pay,  seaman's  wages,  &c 252  a 

mother's  rights  to  child's  services  and  earnings 251 

of  ward  do  not  belong  to  guardian 335 

of  infant ;  his  contract  of  service  construed 121 

whether  money  is  due  when  infant  avoids  it     ...     .       113,  111 

of  servant 172,  188 

See  Emancipation  ;  Pin-money  ;  Trade. 
EDUCATION, 

parents  should  educate  children 235 

questions  under  father's  will ;  religious  education     ....     235 
jurisdiction  and  practice  of  chancery  in  such  matters    .     .     .     235 


808  INDEX. 

EDUCATION—  continued,  Sbctiok 

parent's  right  where  child  is  excluded  from  school   ....     235 

value  considered 242  b 

as  to  guardian  and  ward 340 

as  to  master  and  servant 467 

ELECTION 379,432,448 

See  Ward. 

EMANCIPATION, 

of  children  by  the  parent 253,  267 

how  emancipation  is  effected 267  a 

by  indenture  and  parol 267  a 

emancipation  must  be  proved 267  a 

emancipation  by  abandonment  or  marriage      ....  260,  267  a 

effect  of  emancipation 268 

earnings  of  child  then  belong  to  him 268 

emancipation  on  arriving  at  full  age 269 

full-grown  children  may  remain  at  home 269,  421 

their  rights  and  duties  in  such  case 269 

legislative  emancipation 392 

ENLISTMENT, 

infant's  contract 419 

ENTICEMENT, 

of  wife 41 

of  child 260 

of  servant 487 

EQUITY,   WIFE'S 

to  settlement 85 

EQUITY, 

modifying  coverture 100  et  seq- 

See  Separate  Property. 

EVIDENCE, 

husband  and  wife  disqualified  as  witnesses 53 

exceptions  to  rule 53 

capacity  of  infants  to  testify 398 

servants  may  be  witnesses 480 

EXECUTOR  AND   ADMINISTRATOR, 

wife  as  executrix,  &c 86 

husband  of  female  executrix,  &c 86 

See  Death. 

EXONERATION, 

wife's  right 209 

F. 
FATHER.     See  Parent. 
FORCE, 

in  marriage 23,  24 

FRAUD, 

iu  marriage 23,  24,  76,  77,  183 

See  Torts. 


INDEX.  809 

Section 

FRAUDS,    STATUTE   OF, 

as  to  settlements 172,  170 

applied  to  guardian's  promise 345 

applied  to  contract  of  hiring  a  servant 450 


G. 

GIFTS, 

in  restraint  of  marriage 32 

to  husband  or  wife,  or  both 189,  193  n. 

between  husband  and  wife,  or  postnuptial  settlements  .     .     .  184 

to  child 255 

between  parent  and  child 270 

See  Guardian;  Infants;  Settlements. 

GOVERNMENT, 

not  liable  for  torts  of  servants 483 

GUARDIAN.     (See  Guardianship.) 

consent  of,  to  marriage 30 

marriage  with  female  guardian,  its  effect 86,  326 

effect  of  female  guardian's  marriage 318 

rights  and  duties  of  socage  guardian 320 

rights  and  duties  of  testamentary  guardian 320 

nature  of  guardian's  estate;  whether  a  trustee 321 

authority  over  person  and  estate 320 

chancery  and  probate  control  of  ward's  property  contrasted   .  323 

joint  guardians 322 

guardian  holding  other  trusts 324,  373 

cannot  blend  distinct  trust 324 

where  legacy  is  left  to  an  infant 324 

administrator  durante  minore  (state 325 

quasi  guardianship  where  no  regular  appointment    ....  326 

rights  as  to  ward's  person 331 

guardian's  right  of  custody 332,  333 

rule  as  between  guardian  and  parent;  mother's  rights  .      332,  333 

whether  guardian  may  change  ward's  domicile 334 

or  carry  ward  beyond  the  jurisdiction 334 

guardian  cannot  claim  ward's  personal  services 335 

other  rights  relating  to  ward's  person 335 

duties  as  to  ward's  person 336 

general  rule  of  protection,  education,  and  maintenance      .     .  337 

guardian  not  bound  to  expend  his  own  fortunes 337 

when  he  incurs  personal  liability        337 

appropriation  of  ward's  property  for  his  support       ....  337 

when  income  may  be  exceeded 338 

allowance  to  parent  for  ward's  support       ....          .     .  :i:)0 

maintenance  in  chancery 338,  839 

guardian's  right  to  control  ward's  education 340 


810  INDEX. 

Sectioh 

GUARDIAN  —  continued, 

i-ights  and  duties  as  to  ward's  estate 341 

general  rules  of  management 341,  342 

right  to  sue  and  arbitrate 343 

guardian  cannot  bind  ward  by  contract 344 

but  may  be  reimbursed  from  ward's  estate 344 

title  to  promissory  notes,  &c 345 

application  of  statute  of  frauds  to  guardian's  contract  .     .     .     345 

agents  or  attorneys  employed  by  guardian 346 

changes  in  character  of  ward's  property;  sales,  exchanges,  &c.  347 

conversions  of  property  not  favored 347 

but  practical  conversion  sometimes  takes  place 347 

sales,  exchanges,  mortgages,  &c 347 

unauthorized  acts  are  at  guardian's  peril 348 

limit  of  guardian's  responsibility 348 

he  must  not  derive  undue  advantage 349 

limit  of  guardian's  liability 349 

duties  as  to  ward's  real  estate;  rents,  leases,  &c 350 

authority  over  real  estate  limited;  easements,  dower,  &c.    350,  351 

right  to  mortgage,  execute  deeds,  &c 351 

duties  as  to  personal  estate 352 

must  secure  property,  collect  debts,  deposit,  &c 352 

whether  guardian  may  pledge 352  a 

investment  of  ward's  funds 353 

when  guardian  is  chargeable  with  interest 354 

speculations  with  ward's  money 354 

like  other  fiduciaries 354  a 

sales  of  ward's  personal  estate 347,  355 

sales  of  ward's  real  estate 347,  351,  356-363 

sales  of  lands  under  American  statutes;  essentials,  &c.      .  359-363 

mortgage  of  lands  under  statutes,  &c 361  a 

guardian's  own  sale  not  binding;  usually  sale  must  be  public     364 

criminal  responsibility 381 

his  bond,  inventory,  and  accounts 365-377 

dealings  with  his  ward;  settlement,  &c 378-390 

See  Accounts;  Bond;  Inventory;  Ward.     And  see  Guardianship. 

GUARDIAN   AD   LITEM, 

in  suits  against  infants 296,  449,  451 

GUARDIANSHIP, 

in  general 2,  11,  283,  320 

defined;  applied  to  person  and  estate 283 

ancient  species  of  guardianship 284 

by  nature  and  nurture 285,  290 

in  socage 286,  290 

testamentary  guardianship        287,  290 

chancery  guardianship 288,  291 

by  infant's  election 289 

probate  guardianship 291 

at  civil  law 292 


INDEX.  811 

Section 

GUARDIANSHIP  —  continued, 

of  illegitimate  children 282 

of  insane  persons 283,  293,  379,  380 

of  spendthrifts 293,  379,  380 

of  married  women 294 

for  special  purposes 295 

guardians  ad  litem 296,  451 

quasi  relation  established  where  no  appointment       ....     326 

conflict  of  laws;  ward's  person  or  property 327-329 

constitutional  questions 330 

See  Appointment;  Guardian;  Termination;  Ward. 


H. 

HABEAS  CORPUS, 

as  to  husband  and  wife 48 

as  to  custody  of  child 246,  248 

HOMESTEAD • 214 

HOUSEKEEPING  ALLOWANCE 161 

See  Separate  Property. 
HUSBAND   AND   WIFE, 

general  remarks  as  to  systems  of  legislation,  &c 4-10 

outline  of  examination 33 

person  of  the  spouse;   coverture   doctrine;   husband  head  of 

family 34 

duty  of  spouses  to  adhere  or  live  together 35 

breach  by  desertion,  &c. ;  duty  of  making  cohabitation  toler- 
able         36 

the  matrimonial  domicile 37 

husband's  right  to  establish  the  domicile 38 

domicile  relative  to  alien  and  citizen 39 

woman's  name  changed  by  marriage 40 

right  of  one  spouse  to  the  other's  society;    suit  for  entice- 
ment       41 

husband's  duty  to  render  support 42 

wife's  duty  to  render  services 43 

right  of  chastisement  and  correction 44 

husband's  right  of  gentle  restraint 45 

regulation  of  household,  visitors,  &c 46 

custody  of  children 47 

remedies  against  one  another  for  breach  of  matrimonial  obli- 
gations   48 

right  of  divorce,  indictment,  &c 48 

hire  of  servants 461  a 

coverture  affecting  public  wrongs  and  private  wrongs 49 

spouse  as  a  criminal ;  presumption  of  husband's  coercion  and 

wife's  innocence 50 

offences  against  the  property  of  either  spouse 51 


812  INDEX. 

Section 
HUSBAND   AND   WIFE  —  continued, 

general  rights  and  disabilities  of  the  spouses, 

coverture  and  mutual  disabilities 52 

mutual  disability  to  contract,  sue,  &c 52 

mutual  disqualification  as  witnesses 53 

See  Covkkture. 

equity  and  late  legislative  changes 100-102 

See  Married  Women's  Acts;  Separate  Property. 

prevalent  tendency  to  equalize  the  sexes 100-102 

settlements  and  transactions  between  husband  and  wife       171,  184 
See  Settlements. 

general  contracts  between 191 

husband  as  borrower  from  wife 191 

promissory  note  from  one  spouse  to  the  other 192 

conveyance  from  one  spouse  to  another;  lease,  &c 192 

of  lands  to  husband  and  wife 193 

promissory  note  or  security  payable  to  husband  and  wife  .     .     193 
gift,  &c,  to  husband  and  wife;  their  joint  deposit  or  invest- 
ment           192,  193  n. 

resulting  trust  as  to  fund  in  husband's  or  wife's  favor  .     .     .     194 
equitable  relief  for  fraud,  &c,  of  one  upon  the  other      .     .     .     194 

insurance  on  husband's  life  for  wife's  benefit 195 

dissolution  of  marriage  relation  by  death ;  rights  and  duties 

of  survivor        196,  204 

See  Death. 

wills  of  married  women 203  n. 

effect  of  divorce  upon  property  rights 221,222 

See  Separation;  Divorce. 

conflict  of  laws  as  to  marital  rights 222  n. 

wife  as  guardian 306 


I. 

ILLEGITIMATE   CHILDREN, 

rights  and  disabilities  in  general ;  their  peculiar  footing    .     .  276 

disability  of  inheritance 277 

common-law  and  civil-law  doctrines 277 

inheritance  permitted  in  the  United  States 277 

preference  as  between  mother  and  father .  278 

putative  father's  right  of  custody 278 

Btatutes  affecting  the  subject 278 

whether  putative,  father  must  maintain 279 

seduction  may  support  promise  to  mother 279 

genera]  rights  of  action  as  to  such  children 280 

persons  in  loco  parentis ;  distant  relatives 280 

bequests  to  illegitimate  children 281 

extent,  of  doctrine  in  England  and  America 281 

guardianship  of  illegitimate  child 282,  298 


INDEX.  813 

Section 

IMPOTENCE, 

as  marriage  disqualification 19 

INFANCY, 

in  general;  classification 2 

considered  as  impediment  to  marriage 20,  30 

See  Infants. 

as  to  antenuptial  debts 56 

as  applied  to  wife's  necessaries 71 

conveyance  of  lands 96,  447 

And  see  Guardianship. 
INFANTS, 

husband  bound  as  adult 69,  74,  87 

election  of  guardian 289,  301 

election  of  ward 379 

guardian  sometimes  holds  infant's  legacy 324 

or  administers  in  his  stead 325 

sale  of  infant's  lands;  statute  provisions 356-363 

when  the  age  of  majority  is  reached 391 

general  incapacity  to  contract 392 

growing  capacity  during  non-age 380,  392 

legislative  relief  from  non-age 392 

conflict  of  laws  as  to  the  true  age  of  majority 393 

right  of  infant  to  hold  office  and  perform  official  functions    394,  416 

responsibility  for  crimes 395 

infant's  criminal  complaint;  infant  as  prosecutor      ....     396 

discretion  against  peril 396 

wills  of  infants       .  397 

testimony  of  infants 398 

their  marriage  settlements 399 

their  exercise  of  a  power 399  a 

acts  void  and  voidable 400 

general  doctrine  of  binding  acts  and  contracts 400 

test  of  void  and  voidable  contracts 401 

privilege  of  avoiding  not  extended  to  others 402 

modern  tendency  to  regard  all  acts  as  voidable  only ;  instances     403 

acts  and  contracts  excepted  as  void 403 

bonds,  notes,  &c. ;  voidable  purchase 404,  405 

deeds,  leases,  exchanges,  &c;  rule  of  Zouch  v.  Parsons     .     .     405 

letters  of  attorney,  cognovits,  &c 406 

miscellaneous  voidable  acts  and  contracts 407 

infant  shareholder's  liability 407 

gifts  of  infant 407 

infant's  trading  and  partnership  contracts 408 

summary  of  doctrine  as  to  void  and  voidable 409 

usual  period  of  ratification,  that  of  majority 409 

disaffirmance  of  contracts  during  minority 409 

acts  binding  upon  the  infant 410 

general  principle  of  binding  acts 410 

contracts  for  necessaries 411 

See  Necessaries. 


814  INDEX. 

Section 
INFANTS  —  continued, 

contracts  relative  to  marriage  state 415 

infant's  acts  which  do  not  touch  his  interest;  where  trustee, 

officer,  &c 416 

infant  shareholders  and  defendants  in  equity 417 

acts  which  the  law  would  have  compelled 418 

infant's  contract  of  enlistment;  contracts  binding  because  of 

statute 419 

indentures  of  apprenticeship 419 

infant's  recognizance  on  criminal  charge      ....       404  n.,  420 

contracts  of  service  construed ;  whether  binding 421 

whether  compensation  is  due  when  infant  avoids 421 

injuries  and  frauds  of  infants 422-431 

See  Torts. 
ratification  and  avoidance  of  acts  and  contracts    .     .     .       432-448 
See  Ratification. 

actions  by  and  against 449-451 

chancery  practice  relative  to  infants 452 

binding  effect  of  decree  or  judgment  upon  infant      ....     453 
See  Actions.     See  also  Children;  Domicile;  Guardian. 
INJURIES.     See  Torts. 
INSANE   PERSONS, 

disqualification  for  marriage 18 

See  Guardianship. 
INSURANCE, 

of  husband's  life  for  wife's  benefit 195,  198  n. 

of  parent  on  child's  life 253 

INTEREST 354,374 

See  Guardian. 
INVENTORY, 

of  ward's  estate  to  be  filed  by  guardian 370 

INVESTMENT 353 

See  Guardian. 


J. 

JOINT   GUARDIANS 322,  350,  368 

See  Guardian. 
JOINT  TENANCY 98,  193 


L. 

LEASE 88,  90,  133,  150,  192,  350 

See  Chattels  Real;  Guardian;  Real  Estate. 
LEGACY.     See  Personal  Property. 


INDEX.  815 

Section 

LEGITIMACY, 

definition 224 

presumption  of  legitimacy 225 

legitimation  of  illicit  offspring  by  subsequent  marriage      226,  227 

status  of  children  born  after  divorce 227  a 

doctrine  in  marriages  null,  but  bona  fide  contracted      .     .     .     228 

legitimation  by  sovereign  or  legislative  acts 229 

conflict  of  laws  as  to  legitimacy 231 

See  Illegitimate  Children. 

LETTERS, 

of  husband,  wife's  title 208  n. 

as  basis  of  marriage  settlement 177 

LIFE   ESTATE, 

of  wife,  affected  by  coverture 98 


M. 

MAINTENANCE, 

nature  and  definition ;  wife  and  children 42,  236 

how  far  the  parental  duty  extends  at  common  law    ....     237 

statute  43  Eliz.  applied,  &c 237 

maintenance  of  stepchildren 237,  273 

children  of  separated  or  divorced  parents    237,  239 

maintenance  ordered  in  chancery 238 

circumstances  considered  by  the  court  of  chancery    ....     238 

father  unable  to  support  fully,  &c 238 

rule  applied  to  mother 109,  239 

restriction  applied  to  maintenance  ;  past  maintenance    .      238,  239 

rules  in  chancery,  income,  fund,  &c 239 

value  estimated 242  b 

of  illegitimate  children 279 

rule  applied  to  guardian 337-339,  374 

See  Necessaries. 

MAJORITY.     See  Infants. 

MARRIAGE, 

its  primitive  institution,  &c « 9,  10 

general  conclusions  as  to  marital  relation 10 

definition  of 12 

more  than  a  civil  contract;  an  institution 13 

void  and  voidable;  nullity 14,228 

essentials  of 15 

disqualification  of  blood;  consanguinity  and  affinity      ...       16 

civil  condition ;  race,  color,  &c 17 

religion 17  n. 

mental  capacity;  insane  persons,  &c 18 

drunkenness;  deaf  and  dumb  persons,  &c 18 

physical  capacity  of  parties;  impotence 19 

disqualification  of  infancy 20,  415 


816  INDEX. 

Section 
MARRIAGE  —  continued, 

prior  marriage  undissolved;  polygamy;  bigamy 21 

impediments  following  divorce 22 

force,  fraud,  and  error;  concealment  of  unchastity,  &c.       .      23,  2-4 

essential  of  marriage  celebration 25 

perfect  and  imperfect  consent 25 

informal  marriage ;  words  of  present  and  future  promise,  &c.     26,  27 

formal  marriage;  regular  celebration  by  clergyman,  &c.     .     28,  29 

consent  of  parents  and  guardians 30 

legalizing  defective  marriages;  legislative  marriage  .     ...       31 

restraint  of,  in  trusts,  &c .     .     .       32 

foreign 32  a 

change  of  woman's  name  by 40 

reputed  or  de  facto,  as  to  wife's  necessaries 71 

of  creditor  and  debtor;  effect  on  debt 73 

with  executrix  or  female  guardian,  effect 86 

conflict  of  laws 32  a,  222  n. 

of  child  against  parent's  consent,  effect  of 260 

emancipation  by  marriage 267 

effect  upon  guardianship  of  infant 313 

of  female  guardian,  effect 306,318 

of  ward  in  chancery 390 

MARRIAGE   AND  DIVORCE, 

scope  of  expression 2 

See  Divorce;  Marriage. 

MARRIED   WOMEN'S   ACTS, 

Roman  and  civil  law  experience 6 

modern  property  rights  in  America  and  England      .     .     .     .  6,  8 
legislative  changes  in  general ;  how  to  be  studied      .     .     .    99-102 

scope  and  defects  of  legislation 101 

equitable  and  statutory  separate  estate 102 

in  England, 

married  women's  acts  of  1870,  1882,  &c Ill 

in  the  U tilted  Slates, 

origin  of  our  modern  married  women's  acts      .     .     .     .      112,  113 

New  York  married  women's  act  of  1848 113 

early  acts  of  Pennsylvania  and  other  States 113 

revolution  in  marital  rights 113 

summary  of  statute  changes 113  n. 

tlieir  scope  to  extend  rather  than  limit 114 

constitutional  points;  retrospective  operation,  &c 114 

as  to  antenuptial  property  and  acquisitions  from  third  persons  115 

change  of  investment;  increase  and  profits ;  purchase,  &c.  1 16 

method  of  transfer  from  third  parties  under  these  acts  .     .     .  117 

acquisitions  from  husband  not  so  much  favored 118 

wife's  right  to  bestow  upon  husband 118 

husband's  control;  mixing  wife's  property  or  keeping  it  dis- 
tinct      119 

husband  as  trustee  or  agent 120 


INDEX.  817 

Section 
MARRIED   WOMEN'S   ACTS  —  continued, 

presumptions  as  to  separate  property 120  a 

schedule  or  inventory  as  proof  of  title 121 

statutory  separate  property  and  equitable  separate  property 

compared 122  et  seq. 

See  Separate  Property. 
American  rule, 

wife's  dominion  under  married  women's  acts 142 

New  York  rule  as  to  suretyship 143 

rule  of  other  States  where  charge  is  not  beneficial  ....  143 
combined  tests  as  to  benefit  and  express  intention  ....  144 
separate  property  bound  for  family  necessaries,  &c.       .     .       144  a 

whether  wife  may  bind  as  surety  or  guarantor 145 

inquiry  into  consideration;  promissory  notes,  bonds,  &c.  .  .  146 
equity  charges  on  general  as  well  as  specific  property  .     .     147 

wife's  executory  promise,  whether  chargeable;  purchase  on 

credit,  &c 148 

wife's  ownership  of  stock ;  dominion  and  liability     ....     149 

liability  for  professional  services 149 

joinder  of  husband  in  contracts  and  conveyances 150 

wife's  liability  on  covenants 150 

lease  of  wife's  separate  lands 150 

statutory  restraints  upon  alienation 150  a 

improvements,  repairs,  &c,  on  wife's  land;  mechanics'  liens       151 

mortgage  of  separate  real  estate 152 

husband  as  managing  agent  of  wife 153 

husband's  compensation  as  managing  agent 154 

husband  as  managing  agent;  fraud  on  his  creditors  ....  154 
husband's  fraud  upon  wife  as  to  her  separate  property ;  her 

title  protected        155 

husband's  use  of  wife's  income,  gift,  &c 155 

married  woman  as  trustee 156 

statutes  tending  to  treat  wife  like  a  single  woman  as  to 

property         157 

estoppel  or  election  as  to  wife  with  separate  property  .  .  .  157 
proceedings  for  charging  separate  estate  with  debts       .     .     .     158 

practice  in  such  suits 158 

suing  and  being  sued  as  a  single  woman 158 

promise  of  third  person  to  pay  a  married  woman's  debt  .  158  a 
English  property  acts  of  1870,  1882;  wife's  disposition  .     .     .     159 

earnings  of  wife 162 

trade,  separate 163  et  seq. 

See  Trade. 

general  changes  in  coverture  doctrines 170  n. 

as  to  wife's  antenuptial  debts 170  n. 

as  to  wife's  disability  to  contract 170  n. 

as  to  necessaries  of  wife  and  family 170  n. 

torts  committed  by  wife 170  n. 

torts  committed  upon  the  wife 170  n. 

52 


818  INDEX. 

Sicnos 
MARRIED   WOMEN'S   ACTS  —  continued, 

torts  and  crimes  by  one  spouse  affecting  the  other     .     .     .     170  n. 

changes  concerning  the  wife's  property 170  n. 

equity  to  settlement    .     .     .     170  n. 

wife's  right  to  sue,  submit  to  arbitration,  &c 170  n. 

general  conclusions 170  n. 

general  transactions  between  husband  and  wife    ....     170  n. 

guardianship  of  wife,  under 294 

See  Husband  and  Wife. 

MASTER, 

obligations  as  to  discipline,  education,  &c 467 

duty  to  furnish  necessaries 468 

whether  he  must  find  work 469 

must  indemnify  servant 470 

duty  to  receive  into  service  the  person  engaged 471 

remedies  against  master  for  breach  of  contract     .     .     .      471,472 

obligation  to  pay  wages 472 

apportionment  and  quantum  meruit ;  offsets,  &c 473 

wages:  effect  of  change  of  contract,  excuse  by  act  of  God, 

justifiable  termination,  &c 474 

where  termination  is  by  mutual  consent,  conditions,  &c.    .     .     475 

representations  as  to  servant's  character,  guaranty,  &c.      .     .     476 

general  rights  of  master, 

right  to  protect  and  defend 479 

right  of  action  for  injuries  to  servant 486 

seduction,  enticing  away,  and  harboring 487 

right  to  servant's  acquisitions ;  how  far  respected     ....    488 

general  liabilities  of  master, 

bound  by  servant's  acts  and  contracts  as  agent 489 

application  of  rule  to  contracts 4S9 

agents,  general  and  special 4S9 

civil  liability  for  servant's  torts 490 

not  for  acts  wanton  and  beyond  scope  of  employment    .     .     .     490 

limitations  of  rule 491 

not  liable  to  servant  for  tort  of  fellow-servant 492 

but  liable  for  his  own  negligence 492 

■who  are  servants  and  fellow-servants 492 

not  criminally  l-esponsible  for  servant's  misconduct,  but  only 

for  his  own 493 

See  Servant. 
MASTER   AND   SERVANT, 

nature  and  origin  of  the  relation 2,  454 

limitations  of  the  subject 254,  461 

rule  of  classification 455 

final  observations  on  this  topic 494 

See  Apprentice;  Mastkr;  Servant;  Workmen. 

MORTGAGE, 

of  wife's  lands 91,  94 


INDEX.  819 

Section 
MORTGAGE  —  continued, 

by  wife  for  husband's  debts 137,  152 

of  wife's  separate  lands 137,  152 

wife's  equity  of  redemption 209 

exoneration 209 

by  guardian,  of  ward's  property 347,  351,  301  a 

MOTHER.     See  Parent. 


N. 

NAME, 

wife's  by  marriage 40 

NECESSARIES, 

of  wife 61-71 

under  equity  and  modern  legislation    .     .     .  109,  128,  144  a,  170  n. 
See  Contract. 

of  children 241,  241  a,  269,  337,  411 

whether  child  may  bind  parent 241 

whether  child  must  supply  parent 265 

whether  guardian  must  supply  ward 337,  374 

leading  principles  as  to  infants 411 

what  are  classed  as  necessaries  for  an  infant 411 

question,  one  of  mixed  law  and  fact 412,  413 

education,  house-repairs,  legal  expenses 412 

trading  contracts  not  included 412 

limitation  of  liability  for  necessaries 413,  414  a 

money  advanced  for  necessaries 414 

infant's  bond,  note,  &c,  for  necessaries 414 

of  a  servant,  and  master's  liability 468 

NEGLIGENCE.     See  Torts. 

NULLITY, 

of  marriage,  suits  for 14 


P. 

PARAPHERNALIA 208 

PARENT, 

consent  of,  in  marriage 30 

rule  as  to  family  necessaries 71 

See  Children;  Infancy. 
duties  in  general, 

leading  duties  to  children  enumerated 233 

duty  of  protection 234 

duty  of  education 235 

See  Education. 

duty  of  maintenance 236,  338 

See  Maintenance. 


820  INDEX. 

Section 
PARENT  —  continued, 

duty  to  provide  profession  or  trade 242 

liability  for  minor  child's  burial 242  a 

rights  in  general, 

general  authority  of  the  parent 243 

right  of  chastisement;  indictment  for  cruelty  .     .     .     .      244,332 

right  of  custody 245 

See  Custody. 

right  to  child's  labor  and  services 252 

See  Earnings. 

right  to  clothing,  money,  and  other  effects 253 

mother's  rights  to  child's  services  and  earnings 254 

no  right  to  child's  general  property 255 

how  far  legislature  may  interfere  with  parents'  rights  and  duties    256 

rights  as  to  child's  injuries 257 

See  Torts. 

liabilities  as  to  child's  torts 263 

See  Torts. 

transactions  between  parent  and  child 270,  271 

rule  of  advancements  ;  expectant  estates 272-275 

legacies  to  children ;  descent  and  distribution  ....       272-275 

claims  of  child  upon  estate 274 

suits  between  parent  and  child 275 

PARENT   AND   CHILD, 

nature  of  the  relation 11,  223 

See  Children;  Illegitimate  Children;  Legitimacy;  Parent. 
PERSONAL   PROPERTY, 

of  wife:  coverture  or  common-law  doctrine. 

marriage  a  gift  to  husband 80 

extent  of  gift  considered;  effect  of  divorce,  &c 80 

earnings  of  wife  vest  in  husband 81 

wife's  personal  property  in  possession,  or  corporeal  personalty       82 
incorporeal  personal  property,  or  chosen  in  action; 

reduction  by  husband  requisite 83 

what  are  the  wife's  choses  in  action 83 

money  rights  or  claims 83 

choses  in  action,  &c,  what  constitutes  reduction  into  possession       84 
wife's  equity  to  settlement,  where  chancery  is  sought     ...       85 

modern  changes ;  married  women's  acts 170  n. 

See  Separate  Property. 

of  child 255,281 

of  ward 352-354,  3.15 

of  servant ,..    •     •  488 

PIN-MONEY 1C0 

See  Separate  Property. 

POLYGAMY 21 

See  Makriage. 

PORTIONS 183  n. 

See  Settlements. 


INDEX.  821 

Section 

POSTNUPTIAL   SETTLEMENTS 1»4 

See  Settlements. 

PRESUMPTION, 

of  wife's  coercion  by  husband 49,  75 

in  wife's  necessaries 63,  69 

as  to  ownership;  wife's  separate  property 1-0  a 

of  legitimacy 225 

PROCHEIN  AMI, 

in  suits  by  infants 449 

PROFESSION, 

married  woman's 162-170 

See  Earnings,  Trade. 

PROTECTION 234 


R. 

RATIFICATION, 

of  voidable  acts  and  contracts;  infants  may  ratify  or  disaffirm  432 

Lord  Tenterden's  act  construed 433 

other  statutes  on  this  point 433 

American  doctrine  of  ratification  independent  of  statute    .     .  434 

conflicting  decisions  ;  instances 431,  435 

whether  acknowledgment  of  debt  suffices  ;  conflicting  dicta    .  436 

summary  of  American  doctrine 437 

express  repudiation  and  disaffirmance 437 

ratification  as  to  real  estate;  his  conveyance;  lease;  mort- 
gage, &c 438,  439 

whether  entry  upon  the  land  is  necessary 440 

rule  as  to  an  infant's  purchases 441 

executory  contracts,  &c,  voidable  during  infancy ;  how  af- 
firmed or  disaffirmed 442 

rule  applied  to  infant's  contract  of  service 443 

parents,  guardians,  &c,  cannot  render  contract  obligatory  on 

infant 444 

miscellaneous  points  in  ratification ;  new  promise ;  knowledge 

of  rights 445 

whether  infant  must  place  other  party  in  statu  quo  if  dis- 
affirming    446 

by  intervention  of  agent 446  a 

ratification,  &c,  as  to  infant  married  woman 447 

how  far  chancery  may  elect  for  the  infant 448 

REAL   ESTATE, 

of  wife ;  effect  of  coverture, 

general  rule;  husband's  freehold 89 

curtesy 89, 201,  202 

husband's  interest,  how  lost 89 

where  no  life  interest  is  acquired  by  him 89 

husband's  right  to  convey  or  lease 90 

mortgage 91 

dissent  to  purchase 92 


822  INDEX. 

Section 
REAL   ESTATE  —  continued, 

waste,  conversion,  &c 92 

agreement  to  convey 93 

wife's  agreement  to  convey,  and  her  conveyance 94 

mortgage t 94 

statute  formalities,  &c,  in  conveyance 94 

in  mortgage 94 

covenants  in  statute  conveyance,  mortgage,  &c 95 

conveyance,  &c,  of  infant  wife's  lands 96 

estoppel  applied;   general  lands  and  separate  lands  distin- 
guished    97 

wife's  life  estate;  husband's  interest;  joint  tenancy,  &c.    .     .       98 
husband's  freehold  interest  in  land,  not  devisable      ....       99 

equitable  conveyance  of  wife's  separate 133 

encumbrance  by  mortgage,  &c 137,  152 

changes  by  married  women's  acts 170  n. 

See  Separate  Property ;  Death. 

of  child 255 

of  infant  ward :  how  sold,  mortgaged,  &c.     347,  350,  351,  356-363,  369 
REDUCTION  INTO   POSSESSION, 

under  coverture  doctrine 84 

See  Personal  Property  of  Wife. 
RELIGION, 

marriage  disqualification  of 17  n. 

See  Education. 
RESTITUTION, 

of  conjugal  rights;  suit  for 218  n. 


S. 

SEDUCTION, 

marriage  of  seducer  and  seduced 23,  24 

of  wife 41 

of  child 261 

of  ward 335 

of  servant 261,487 

See  Illegitimate  Children. 

SEPARATE   PROPERTY, 

of  married  women,  its  nature  and  creation 6 

prevalent  tendency  to  equalize  the  sexes 100 

wife's  consideration  promoted;  idea  of  domestic  government 

weakened 101 

separate  property  of  wife  in  general 102 

equitable  and  statutory  separate  estate 102 

English  chancery  doctrine, 

origin  and  nature  of  separate  estate  in  English  chancery    .     .  103 

whether  .appointment  of  trustee  is  needful 103 


INDEX.  823 

Section 
SEPARATE    PROPERTY  —  continued, 

coverture  applies  prima  facie  ;  how  separate  estate  is  created  106 

admission  of,  by  suit,  &c,  by  husband 105 

separate  use  binds  produce  of  fund 106 

continues  only  during  marriage  state;  exceptions  107 

husband's  rights  on  wife's  decease 107 

separate  use  may  be  ambulatory ;  case  of  marriage ;  widow- 
hood; remarriage 107 

wife's  power  to  renounce 108 

husband's  disposition  to  bona  fide  purchasers 108 

whether  affects  husband's  obligations 109 

clause  of  restraint  upon  anticipation 110 

separate  use  in  common-law  courts;  English  legislation     .     .  Ill 
See  Married  Women's  Acts. 
A  merican  doctrine, 

in  general;  equity  and  legislation 112 

American  equity  doctrine, 

statutory  separate  property  and  equitable  separate  property    .  122 

American  equity  doctrines  borrowed  from  England  ....  123 

whether  trustee  need  be  appointed 123 

creation  of  separate  use  in  equity ;  what  words  and  acts  suffice  124 

acquisition  by  contract;  produce  and  income 125 

as  to  preserving  identity  of  wife's  separate  funds       ....  126 

separate  use  continues  only  during  marriage  state     ....  127 

ambulatory  operation ;  widowhood;  remarriage 127 

whether  husband's  obligations  are  affected 128 

restraint  upon  anticipation 129 

Wife's  dominion  over,  Sfc, 

general  principle  of  wife's  dominion 130 

unless  restrained,  wife  takes  with  power  to  dispose  ....  131 

same  principle  applies  to  income,  profits,  &c 132 

technical  difficulties  as  to  real  estate 133 

English  doctrine  of  liability  of  separate  estate      .     .     .    134  et  seq. 

liability  for  wife's  engagements 134 

latest  English  modification  of  rule 135 

liability  in  England;  engagements  not  beneficial   .     .     .  135 

liability  for  engagements,  &c. ;  American  rule 136 

property  with  power  of  appointment 136  a 

wife's  right  to  bestow  on  husband,  bind  for  his  debts,  &c.      .  137 

concurrence  of  trustees  in  wife's  disposition 138 

as  to  precluding  wife's  dominion 139 

wife's  participation  in  breach  of  trust;  husband's  misconduct  140 

income  from  separate  estate  to  husband ;  arrears 141 

See  Married  Women's  Acts. 

wife's  pin-money;  nature  and  incidents 160 

housekeeping  allowance 161 

earnings ....  io- 

See  Earnings. 


824  INDEX. 

Section 
SEPARATE    PROPERTY  —  continued, 

separate  trade 163  et  seq. 

See  Trade. 
resulting  trust  as  to  fund  in  husband's  or  wife's  favor  .     .     .     194 

See  Husband  and  Wife;  Settlements. 
purchasing  spouse's  property  on  sheriff's,  &c,  sale    ....     194 

equitable  relief  for  fraud 194 

insurance  for  wife's  benefit 195 

rights  after  death 196,  203  n.,  204 

SEPARATION, 

wife,  wheu  treated  as  feme  sole 55 

deed  and  expenses,  whether  necessaries 61 

rule  as  to  wife's  necessaries 62,  66  et  seq. 

effect  upon  husband's  suit  for  loss  of  wife's  services  ....       77 

effect  on  wife's  real  estate  and  coverture  rights 89 

in  general 215 

deeds  of,  their  history  in  England 215,  216 

in  the  United  States 217 

intervention  of  trustee 218 

what  covenants  upheld 218 

latest  English  doctrine  upholds  deed 218  n. 

custody  and  maintenance  of  offspring  under     .     .     .       218  n.,  239 
whether  deed  bars  restitution  of  conjugal  rights  ....     218  n. 

specific  performance  of  covenant  to  separate 218  n. 

separate  maintenance  from  unfaithful  husband 219 

abandonment;  wife's  right  to  earn,  contract,  &c 219 

SERVANT, 

relation  arises  upon  the  hiring 458,  461 

the  contract  of  hiring 458 

distinction  between  menial  and  other  servants 458 

contract  affected  by  statute  of  frauds 459 

in  restraint  of  trade 460 

contracts  for  life;  oppressive  length  of  term 460 

creating  the  relation  of  service:  quasi  servants 461 

service  and  agency 461 

how  contract  is  terminated 462 

withdrawal  or  resignation 462,463 

causes  of  discharge,  &c 462,  463 

termination  of  service  by  mutual  consent 464 

special  terms  of  service,  &c 464 

servant  does  not  occupy  premises  as  tenant 465 

servant's  right  to  wages ;  his  own  property 472,488 

liabilities  as  to  master, 

Ixiuinl  tu  perform  engagement 477 

accountability  to  master;  negligence,  unskilfulness,  &c.     .     .     478 

battery  in  defence  of  master 479 

he  may  be  a  witness  for  his  master 480 


INDEX.  825 

Section 

SERVANT  —  continued, 

liabilities  as  to  third  persons, 

not  personally  liable  on  contract  for  master ;  exceptions    .     .     481 

otherwise  in  case  of  fraud  and  corruption 482 

liability  for  his  torts 482 

misfeasance  and  nonfeasance 482 

government  and  its  servants ;  public  officers 483 

servant  criminally  accountable 484 

See  Master. 

SETTLEMENT, 

•wife's  equity  to 85 

SETTLEMENTS,   MARRIAGE, 

nature  of  antenuptial  and  postnuptial 171 

promises  to  marry  and  promises  in  consideration  of  marriage     172 
effect  of  divorce  upon 221 

I.  Antenuptial:  effect  on  wife's  debts  dum  sola 57 

marriage  here  a  supporting  consideration 173 

extent  of  support ;  consideration  as  to  collateral  parties,  &c.  .     174 
settlement  good  in  pursuance  of  agreement  before  marriage   .     175 

form  of  settlement ;  liberal  effect  to  intent 175,176 

marriage  articles;  letters  preliminary  to  deed 177 

settlement  by  father,  or  other  third  party 177 

statute  of  frauds  ;  promises  "  in  consideration  of  marriage  "  172, 179 

lost  settlements 179 

authenticity  of  settlement  must  be  established 180 

whether  trustee  must  be  designated;  trustee's  concurrence     .     180 

secret  transfer ;  fraud  of  intended  spouse 181 

reforming  settlements  framed  on  articles 182 

portions  and  provisions  for  children,  &c 183 

mistakes,  fraud,  improvidence,  &c,  in  settlement     .     .     .     183  n. 

construction  of,  intent  upheld 183  n. 

clauses  barring  rights  of  survivor 183  n.  ,198  n. 

covenant  to  settle  after-acquired  property 183  n. 

in  United  States;  registry  and  other  statutory  provisions  .     183  n. 
rescission  or  avoidance 1S3  a 

II.  Postnuptial:  distinguished  from  antenuptial 184 

binding  upon  parties  ;  otherwise  as  to  creditors,  &c.      .     .     .     184 

English  statutes,  13  &  27  Eliz 185 

effect  of  13  Eliz.  as  to  creditors  ;  English  rule 186 

American  rule 186 

effect  of  bankrupt  acts 186 

27  Eliz.  as  to  purchasers  ;  English  doctrine     .     .     .     187 

American  doctrine  .     .     .     187 

valuable  consideration  sustains  against  creditors,  &c.    .     .     .     188 

statutory  requirements ;  registry,  &c 188  n. 

bv  wife  upon  husband 188  a 

as  between  the  spouses, 

voluntary  conveyance  or  gift  good  against  grantor  or  donor    .     189 
effect  of  mere  promise  or  assignment;  declaration  of  trust      .     189 


826  INDEX. 

Section 
SETTLEMENTS,   MARRIAGE  —  continued, 

husband's  voluntary  conveyance  to  wife  sustained    ....     189 

gift  or  settlement ;  instances 189  n. 

husband's  transfer  not  intending  a  gift 190 

gift  or  conveyance ;  wife  to  husband 190 

postnuptial  settlement  or  transfer  upon  consideration    .     .     .     190 

trustees  in  postnuptial  settlements 190 

III.  Settlements  of  Infants 390,  399 

SPENDTHRIFTS.     See  Guardianship. 

SPOUSE.     See  Husband  and  Wife. 

STEP-CHILDREN, 

rights  and  liabilities 237,  239,  261,  273 

SURVIVORSHIP 88 

See  Death. 


T. 

TERMINATION, 

of  guardianship  in  general 310 

its  natural  expiration  as  to  minors,  ward  of  age,  &c.      ...  311 

as  to  insane  persons  and  spendthrifts 311 

death  of  the  ward 312 

marriage  of  the  ward 313 

death  of  the  guardian 314 

resignation  of  the  guardian 315 

removal  and  supersedure  of  guardian 316,  317 

marriage  of  female  guardian 318 

other  instances  where  a  new  guardian  may  be  appointed  .     .  319 

of  servanVs  contract 462-464,  474 

TORTS, 

of  one  spouse  upon  another 49,  51 

committed  by  the  wife 74 

coverture  principle 74 

husband  and  wife  sued  together,  or  husband  alone    ....  75 

coercion  presumed 75 

limitation  of  husband's  liability 75 

instances;  management  of  defence 75 

where  basis  of  fraud  is  wife's  contract 76 

replevin  in ;  equity  proceedings,  &c 76 

committed  upon  the  wife 77 

general  rule;  practice 77 

damages;  survival  of  action 77 

husband's  separate  cause  of  action 77 

instantaneous  death  ;  statutes,  &c 78 

committed  upon  both  husband  and  wife 79 

as  to  torts  in  general ;  marriage  essential 79 

under  equity  and  married  women's  acts 170  n. 


INDEX.  827 

Section 
TORTS  —  continued, 

of  children  considered 257 

parent  may  sue  for  loss  of  child's  services 257 

limitations  of  the  rule 258 

statutes  affecting  the  right  of  action 259 

incidents  of  such  suits 259 

assault  and  battery  of  child 259 

enticement  and  abduction 2(i0 

cases  where  right  of  action  is  not  sustained 2G0 

seduction  of  child 261 

amount  of  damages  recoverable 262,  430 

liability  of  parent  for  torts  or  frauds  committed  by  his  infant 

child 263 

child  himself  is  answerable 263 

but  not  necessarily  the  parent 263 

as  between  guardian  and  ward 381 

committed  by  infants 423 

rule  of  infant's  liability  ;  civilly  liable 423 

•where  parent  expressly  commands 423 

not  responsible  for  torts  arising  from  contracts 424 

equitable  principle  of  later  cases 424,  425 

embezzlement  and  deceit   .     . 425 

infant's  fraudulent  representation  as  to  age,  &c 425 

chancery,  civil  law;  and  statutory  rules 426 

suffered  by  infants 427 

general  right  to  sue 427 

except  where  a  trespasser,  or  contributing  to  injury  ....  428 

contributory  negligence  of  child's  parent,  protector,  &c.     .     .  429 

employment  of  minor  injured  in  service 492  n. 

joint  wrong-doers 429 

suit  of  parent  and  child  for  injury  ;  loss  of  services  reckoned  430 
arbitration  and  compromise  and  settlement  of  torts  committed  or 

suffered 431 

torts  and  frauds  of  servant 482-484 

of  government  agents 483 

liability  of  master  for  servant's  torts 490-492 

See  also  Guardianship;    Master  and  Servant. 
TRADE, 

separate,  by  married  woman 163 

earlier  English  doctrine 163 

by  custom  of  London,  &c 163 

not  common  in  England 163 

American  equity  doctrine 164 

assent  of  husband,  American  custom,  &c 164 

repudiated  in  some  States 164 

American  equity  rule,  general  conclusions 165 

under  recent  English  statutes 166 

American  statutes 166,  167 

statute  requirements,  registry,  &c 167 


828  INDEX. 

rr,T->       -r^T-.  .  SECTION 

TRADE  —  continued, 

wife's  capacity  for  carrying  it  on 167 

selling  out  the  business 167 

husband's  participation,  his  agency,  &c 168 

husband  and  wife  as  copartners 169 

wife's  copartnership  with  third  persons 169 

suits  by  or  against  wife  as  trader 169 

trading  under  civil  codes 170 

of  a  ward 349 

of  an  infant 242, 408,  412,  442 

TRUSTEE, 

in  separate  property 103,  120,  123,  138,  140 

married  woman  as 86,  156 

in  antenuptial  settlement 180 

in  separation  deed 218 

whether  guardian  is 321 


W. 

"WAGES.     See  Earnings. 

WARD, 

judicial  control  of  ward's  property ,     .     323 

property  followed  whenever  wrongfully  disposed  of  .     .     .     .     349 

as  to  ward's  real  estate 347,  349 

constitutional  questions  concerning  sales 330 

extent  of  guardian's  control 350,  351 

sales  not  allowed  in  chancery 355,  356 

purchases  on  ward's  behalf 356 

civil  law  rule 358 

legislative  authority  may  intervene 359 

American  statutes  permit  sales 359,  360 

disposition  of  proceeds 360 

essentials  of  purchaser's  title 361 

immaterial  irregularities;  those  which  make  sale  voidable; 

those  which  make  sale  void 361 

mortgages  of  ward's  land  under  statute 361 

sales  of  land  by  non-residents 362 

New  York  chancery  rule;  American  equity  rule 363 

general  rights  of  the  ward 378 

doctrine  of  election  as  to  wards,  insane  or  infant  .     .     .      379,  380 

remedies  against  his  guardian 381 

action  or  bill  for  account  after  guardianship;  limitations,  &c.     382 

right  to  recover  embezzled  property 383 

right  to  have  fraudulent  transactions  set  aside 384 

may  repudiate  or  coufirm  unauthorized  acts  at  his  election  385 

election  as  to  guardian's  bargains  with  ward's  funds      .      385,  386 
resulting  trusts;  guardian's  misuse  of  funds  or  purchase  of 
property 386 


INDEX.  829 

Sectiob 

WARD  —  continued, 

transactions  between  guardian  and  ward ;  undue  influence,  &c.  387 

gifts  to  guardian  treated  with  suspicion 387 

such  questions  determined  on  final  settlement  of  accounts      .  388 

ward's  right  to  reopen  accounts 388 

transactions  after  guardianship  is  ended 389 

marriage  of  wTard  in  chancery 390 

See  Guardian. 

WASTE 92 

See  Real  Estate. 

WIDOW.     See  Death. 

WIFE.     See  Husband  and  Wife. 

WILLS, 

freehold  interest  of  husband ;  wife  cannot  devise 99 

of  husband,  widow's  waiver,  election,  &c 206 

of  married  women 203  n. 

will  of  person  under  guardianship 379,  380 

incapacity  of  infants 397 

WITNESSES.     See  Evidence. 

WORKMEN, 

English  legislation 456 

councils  or  courts  of  conciliation 456 

American  legislation 456 

trade  associations 456 


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